A CITES Reference Manual

       

The International Environmental Law Project (IELP) is a legal clinic at Lewis & Clark Law School that works to develop, implement, and enforce international environmental law. It works on a range of issues, including wildlife conservation, climate change, and issues relating to trade and the environment. IELP is registered as Lewis and Clark College (IELP) at CITES meetings. This project was made possible by the Species Survival Network. All views expressed in this document are those of the authors only. For more information, contact: Chris Wold Professor of Law & Director International Environmental Law Project Lewis & Clark Law School 10015 SW Terwilliger Blvd Portland, OR 97219 USA TEL +1-503-768-6715 FX +1-503-768-6671 E-mail: wold@lclark.edu law.lclark.edu/org/ielp Cite as: ERICA LYMAN & CHRIS WOLD, A CITES REFERENCE MANUAL (2013). Copyright © 2013 International Environmental Law Project Photo Credits: Vicuña (Vicugna vicugna), page 14: David Torres Costales Whale shark (Rhincodon typus), page 23: Zac Wolf Hawksbill turtle (Eretmochelys imbricata), page 28: B.navez African cherry (Prunus africana), page 59: Marco Schmidt

       

PREFACE

IELP and the Species Survival Network (SSN) have produced A CITES Reference Manual to focus attention on the implementation issues that are critical to the success of CITES. A CITES Reference Manual is not meant as a tool for informing on-the-ground implementation; instead, its purpose is to complement the SSN Digest, as well as other sources of information, such as the CITES Website and The Evolution of CITES by Willem Wijnstekers. This reference manual is not comprehensive, but it does highlight and explain some of the more important issues in CITES implementation. As CITES evolves, so too will this Handbook. It will be updated at least annually and often semi-annually when both the Standing Committee and the Conference of the Parties meet. Please find updated versions of SSN’s CITES Reference Manual at www.ssn.org or go.lclark.edu/IELP. If you would like to be placed on an email list to receive notifications when updated version have been posted, please email Erica Lyman at ejt@lclark.edu with the subject line “EMAIL LIST.”

       

Table of Contents Introduction CITES: A Broad Overview The Role and Function of CITES Bodies

The Conference of the Parties The Bureau The Credentials Committee The Standing Committee The Animals and Plants Committees The Secretariat

Procedural Issues Submitting Proposals and Working Documents Amending a Proposal to Amend the Appendices What does it Mean to Reduce the Scope of a Proposal? Amending a Working Document Voting on Proposals to Amend the Appendices or Adopt Working Documents Special Voting Procedures for Amendments to the Appendices Special Voting Procedures for Working Documents Opening Debate in Plenary on Proposals Originating in Committees I and II Reopening Debate in Plenary on Proposals Originating in Plenary

Defining the Scope of the Convention Which Species May be Included in the Appendices?

Appendix I Species Appendix II Species Appendix III Species

Which Specimens of Species may be Regulated by the Convention? “Specimen” “Readily Recognizable Parts and Derivatives”

“Trade” “Export,” “Re-export,” and “Import” “Introduction from the Sea”

Listing Species in Appendix I and Appendix II Criteria for Inclusion in Appendix I Criteria for Inclusion in Appendix II Look-alike Species Listing Marine Species Split-Listings Annotations Appropriate and Acceptable Destinations The Precautionary Approach to Listing Decisions Reservations

The Convention’s Permit Requirements Permit Rules for the Import and Export of Appendix I and II Specimens Permit Rules for Re-export of Appendix I and II Specimens Permit Rules for the Introduction from the Sea of Appendix I and II Specimens Permits and Certificate Requirements for Appendix III Specimens Non-detriment Findings

       

Primarily Commercial Purposes Finding Transport Rules for the Export of Living Specimens The “suitably equipped to house and care for” Finding Validating the Authenticity of Permits Adequacy of Permit Findings Purpose Codes Source Codes

Exemptions Customs Control/Transshipment Pre-Convention Specimens Personal and Household Effects

Appendix I Specimens Appendix II Specimens

Captive Bred and Artificially Propagated Specimens Travelling Exhibitions

Special Implementation Issues Stricter Domestic Measures Trade with non-Party States Wildlife Trade Policy Reviews Livelihoods Trade in Hunting Trophies Export Quotas Appendix I Export Quotas Appendix II Export Quotas

Compliance and Enforcement Issues Compliance and Enforcement under Article XIII Compliance and Enforcement under Resolution Conf. 14.3 Compliance under Resolution Conf. 11.18 Review of Significant Trade National Legislation Project

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INTRODUCTION The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is known primarily for its lists of protected species, with Appendix I reserved for species threatened with extinction and which are or may be affected by trade. Appendix II includes those species that may become threatened if trade is not regulated. The Appendices include about 34,000 species. Since CITES entered into force on July 1, 1975, the Parties have developed numerous interpretations of key terms, mechanisms for species conservation that are not found in the Convention itself, and institutions to guide implementation of the Convention. As such, CITES is a living multilateral regime that is evolving to meet ongoing conservation challenges. The Convention now boasts more than 80 resolutions that guide implementation of the Convention, as well as dozens of decisions directing the Parties, the Secretariat, and various CITES committees to undertake specific actions. The large number of resolutions, however, may make it difficult to follow debates on certain issues. For example, debate over proposals to transfer populations of African elephants (Loxodonta africana) will have as a backdrop several resolutions concerning monitoring of poaching and illegal ivory trade (Resolution Conf. 10.10 (Rev. CoP15)), special rules for considering the transfer of African elephant populations from Appendix I to Appendix II (Resolution Conf. 10.9), and rules for “annotating” listings in the Appendices (Resolution Conf. 11.21 (Rev. CoP15)), among others.

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To facilitate preparation for and participation in these debates, this CITES Reference Manual describes some of the most important procedural issues, implementation issues, and CITES mechanisms.

CITES: A BROAD OVERVIEW CITES is the principal multilateral environmental agreement for regulating trade in plants and animals of conservation concern. CITES has a very narrow focus: the regulation of international trade in wildlife. CITES does not regulate domestic trade in wildlife, and it does not protect habitat or require governments to adopt specific management practices. Instead, CITES regulates international trade, which includes import, export, re-export, and “introduction from the sea,” after the CITES Parties decide to include a species in Appendix I or II at a meeting of the Conference of the Parties, or when a Party lists a species in Appendix III. Placement in a particular Appendix determines the extent to which international trade is regulated in specimens of those listed species and what types of permits or certificates are required. Appendix I includes those species that are “threatened with extinction which are or may be affected by trade.” Appendix I includes more than 800 species, including the fin whale (Balaenoptera physalus), black rhino (Diceros bicornis), and houbara bustard (Chlamydotis undulata), as well as all species of great apes (Hominidae). Appendix II includes those species that may become threatened with extinction unless trade is strictly regulated. It also includes species that look like, or have parts that look like, other listed species or their parts. For example, because the gall bladders of North American black bears (Ursus americanus) are virtually indistinguishable from gall bladders of endangered Asian bears (Ursus thibetanus), the Parties have included the North American black bear in Appendix II. Appendix II includes more than 32,000 species, including the Barbary macaque (Macaca sylvanus), basking shark (Cetorhinus maximus), and several hundred species of orchids. Species are included in Appendix I or II only after the Parties approve the inclusion of the species by a two-thirds majority vote.

Appendix III includes those species that a Party has determined are “subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the cooperation of other Parties in the control of trade.”

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CITES requires Parties to issue different permits or certificates depending on whether a species is included in Appendix I, II, or III. Trade in specimens of Appendix I species requires both an import and export permit. In contrast, trade in specimens of Appendix II species requires only an export permit. Trade in specimens of Appendix III species requires different types of permits or certificates, depending on the circumstances. Article VII of the Convention includes a number of exemptions to the permit requirements for trade in Appendix I, II, or III specimens, such as for personal and household effects. Exemptions present numerous implementation challenges. As a result, the Parties have adopted additional rules and clarifications to implement these exemptions. To ensure that the Convention is properly implemented and enforced, CITES requires that Parties take certain actions. First, a Party must designate one or more Management Authorities. The Management Authority is responsible for issuing permits and certificates and making any findings required for issuance of a permit or certificate. Second, a Party must designate one or more Scientific Authorities to make the non-detriment finding required before issuance of import and export permits and introduction from the sea certificates. Third, a Party must adopt appropriate legislation to prohibit trade in violation of CITES. According to Article VIII(1) of the Convention, that legislation must include provisions to penalize trade in, or possession of, specimens that violates CITES. Additionally, the Convention specifies that legislation must include provisions to confiscate specimens traded in violation of CITES or to return the species to the State of export.

The Convention also imposes a number of record-keeping and reporting obligations on Parties. According to Article VIII(6), each Party must keep records on importers and exporters, as well as basic information concerning trade, including both quantitative and qualitative information. Article VIII(7) requires Parties to submit annual reports to the Secretariat that summarize the information identified in Article VIII(6), plus biennial reports that describe legislative, regulatory, and administrative measures taken to address enforcement and implementation of the Convention.

THE ROLE AND FUNCTION OF CITES BODIES As with any multilateral agreement, the Convention includes a number of bodies that collect information, provide advice, and make decisions, among other things.

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The Conference of the Parties The Conference of the Parties is the supreme decision-making body includes all Parties to CITES. It includes all Parties to the Convention. The Conference of the Parties is responsible for amending the Appendices and taking decisions regarding implementation of the Convention by adopting, rejecting, or amending Resolutions and Decisions. Article XI of the Convention outlines the general tasks of the Conference of the Parties.

Article XI: The Conference of the Parties May make such provision as may be necessary to enable the Secretariat to carry out its duties and adopt financial provisions May consider and adopt amendments to Appendices I and II in accordance with Article XV May review the progress made towards the restoration and conservation of the species included in Appendices I and II May receive and consider any reports presented by the Secretariat or by any Party May, where appropriate, make recommendations for improving the effectiveness of the present Convention The Conference of the Parties meets every two to three years, usually for a duration of approximately two weeks. Typically, these meetings include parallel sessions of Committees I and II.

• Committee I debates species issues, including proposals to amend the Appendices.

• Committee II discusses implementation issues, such as rules relating to compliance or implementation of the exceptions to permitting rules.

Both Committees include all Parties. The Committees make recommendations regarding species proposals and working documents to the Conference of the Parties when it meets in plenary. In some cases, the Committees’ recommendations are decided by vote. A Committee votes to recommend adoption of a proposal, draft resolution, or decision by a two-thirds majority of those present and voting. Both Committees meet for as long as it takes to work through their entire agenda. Usually proposals and resolutions are discussed in the order in which they appear on the agenda. However, the Committee Chair or the Bureau may decide to adjust the agenda so that related issues may be discussed together or to ensure that everyone is aware when particularly sensitive issues will be discussed. For example, the Chair of Committee I has sometimes identified a specific date and time for discussion of proposals relating to African elephants (Loxodonta africana).

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Meetings of the Conference of the Parties typically begin and end with plenary sessions. At the opening plenary, the Conference of the Parties may take decisions regarding the agenda, the adoption of the Rules of Procedure, and other housekeeping items. In the final days of the meeting, the Conference of the Parties convenes in plenary to adopt or reject the recommendations of Committee I and Committee II. Often, the Conference of the Parties takes decisions in plenary by consensus, but a Party may instead request a vote, in which case a two-thirds majority is needed to adopt the decision or resolution. A Party may seek to open debate on any matter previously discussed in Committee I or II once convened in plenary as long as the procedural rules to do so are met.

The Bureau Rule 15 of the Rules of Procedure designates the Bureau and identifies its role. The Bureau’s chief responsibility is to ensure the effective enforcement of the Rules of Procedure and to facilitate the completion of business at a meeting of the Conference of the Parties. The Bureau may alter the timetable or structure of the meeting if necessary. The Bureau includes the Chairman of the Conference of the Parties, the Vice-Chairman, the Alternate Chairman, the Chairmen of Committees I and II, the Chairman and members of the Standing Committee, the Chairman of the Credentials Committee, and the Secretariat. The Credentials Committee Rule 5 of the Rules of Procedure establishes the Credentials Committee, which includes not more than five Representatives of different Parties. The Credentials

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Committee is typically chosen on the first day of plenary at each meeting of the Conference of the Parties. The Credentials Committee reviews the documentation submitted by each Representative of a Party, which shows that the individual is authorized to represent that Party at the meeting. The Standing Committee Resolution Conf. 11.1 (Rev. CoP15) establishes the Standing Committee as the “senior” committee. Annex I of Resolution Conf. 11.1 (Rev. CoP15) provides the Standing Committee’s terms of reference. In general, the Standing Committee is the policy advisor to the Secretariat, as well as its budget director. The Standing Committee also acts on behalf of the Conference of the Parties intersessionally.

The Standing Committee Provides general policy and general operational direction to the Secretariat concerning the implementation of the Convention Provides guidance and advice to the Secretariat on the preparation of agendas and other requirements of meetings, and on any other matters brought to it by the Secretariat in the exercise of its function Oversees, on behalf of the Parties, the development and execution of the Secretariat’s budget as derived from the Trust Fund and other sources, and also all aspects of fund raising undertaken by the Secretariat in order to carry out specific functions authorized by the Conference of the Parties, and to oversee expenditures of such fund-raising activities Provides coordination and advice as required to other committees and provide direction and coordination of working groups established by either itself or the Conference of the Parties Carries out, between one meeting of the Conference of the Parties and the next, such interim activities on behalf of the Conference of the Parties as may be necessary Drafts resolutions for consideration by the Conference of the Parties Reports to the Conference of the Parties on the activities it has carried out between meetings of the Conference Performs any other functions as may be entrusted to it by the Conference of the Parties The Standing Committee meets annually, often in July in Geneva, Switzerland. During years when the Conference of the Parties also meets, the Standing Committee meets just prior to and just after the meeting of the Conference of the Parties. Resolution 11.1 (Rev. CoP15) provides that the Standing Committee shall include representation from each of the six major geographic regions: Africa, Asia, Central and South America and the Caribbean, Europe, North America, and Oceania. Representation is weighted according to the number of Parties in each region. For example, regions with up to 15 Parties are allotted one representative, whereas regions with more than 45 Parties are allotted four

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representatives. The Standing Committee also includes the Depository Government (Switzerland), which may only vote to break a tie, and the Parties that hosted the last meeting of the Conference of the Parties and that will host the following meeting, which do not have voting rights. Alternate members and other Parties may also be present for Standing Committee meetings, which include debate on a number of important issues.

Standing Committee: Current Regional Representation Africa 4 representatives Asia 3 representatives Central and South America and the Caribbean

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North America 1 representative Europe 4 representatives Oceania 1 representative The Animals and Plants Committees Resolution 11.1 (Rev. CoP15) also establishes the Animals and Plants Committees. These committees provide scientific advice to the Conference of the Parties and all other CITES bodies regarding species proposals, as well as the current biological and trade status of species listed in the Appendices as part of a periodic review. The Animals and Plants Committees also deal with nomenclature issues, clarifying appropriate and standardized references and providing advice on such issues to individual Parties, the Secretariat, and the Conference of the Parties. The Animals Committee and the Plants Committee each include an individual representing North America, an individual representing Oceania, and two persons representing each of Africa, Asia, Central and South America and the Caribbean, and Europe. Additionally, the Conference of the Parties appoints a zoological nomenclature specialist and a botanical nomenclature specialist to sit on the committees in a non-voting, ex officio capacity. The Secretariat The Secretariat performs a number of functions to serve the Conference of the Parties. Article XII of the Convention outlines the primary functions of the Secretariat.

Article XII: The Functions of the Secretariat Arrange for and service meetings of the Parties Perform the functions entrusted to it under the provisions of Articles XV and XVI Undertake scientific and technical studies in accordance with programmes authorized by

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the Conference of the Parties as will contribute to the implementation of the present Convention, including studies concerning standards for appropriate preparation and shipment of living specimens and the means of identifying specimens Study the reports of Parties and to request from Parties such further information with respect thereto as it deems necessary to ensure implementation of the present Convention Invite the attention of the Parties to any matter pertaining to the aims of the present Convention Publish periodically and distribute to the Parties current editions of Appendices I, II and III together with any information which will facilitate identification of specimens of species included in those Appendices Prepare annual reports to the Parties on its work and on the implementation of the present Convention and such other reports as meetings of the Parties may request Make recommendations for the implementation of the aims and provisions of the present Convention, including the exchange of information of a scientific or technical nature Perform any other function as may be entrusted to it by the Parties The Secretariat’s role is both administrative and substantive, though its substantive work largely takes its cues from the Parties. Administratively, the Secretariat organizes and staffs CITES meetings, including receiving and distributing Parties’ proposals and other documents. Additionally, the Secretariat is a clearinghouse for information relevant to Parties’ day-to-day implementation of CITES. The Secretariat shares information with the Parties via notifications, which are available on the CITES website. In addition to tasks that the Parties assign to the Secretariat, either via decision or resolution, the Secretariat performs two important continuous substantive functions. First, the Secretariat facilitates ongoing compliance and enforcement by regularly communicating with Parties that are the subject of compliance concerns and with Parties concerned about their own or other Parties’ compliance. Article XIII of the Convention and Resolution Conf. 11.3 (Rev. CoP15) provide a number of important roles for the Secretariat in facilitating compliance amongst the Parties, including the provision of technical advice and training, liaising with the Standing Committee, and requesting and distributing relevant information. Resolution Conf. 11.3 (Rev. CoP15) also directs the Secretariat to provide staff to work on enforcement matters and to liaise with both national-level and international enforcement bodies and agencies. The Secretariat’s second important substantive task is to make recommendations regarding implementation of the Convention. This work manifests in many ways, but one of the most obvious is the Secretariat’s role in recommending amendments to existing Resolutions and proposing new Resolutions, Decisions, or other documents when appropriate. Any proposals from the Secretariat generally relate directly to the existing work of the Secretariat or management of its relationships with other agencies and bodies.

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Additionally, the Secretariat contributes substantively to the work of the Parties by providing its recommendations regarding all proposals submitted by the Parties, including species proposals and working documents.

PROCEDURAL ISSUES

At each meeting of the Conference of the Parties, the Parties must adopt Rules of Procedure for electing officers, conducting debate, and voting on proposals. The Parties typically debate and approve the Rules of Procedure as one of the first orders of business. The Conference of the Parties uses the Rules of Procedure adopted at the previous meeting to conduct its business until it adopts the new Rules of Procedure. The proposed Rules of Procedure for a meeting can be found with the agenda and working documents for a meeting. The rules for electing officers and making procedural motions to open and close debate are straightforward and are not addressed in this manual. However, because the rules for debate, amendment, and voting on a proposal are more complex, these rules are described in detail below. Submitting Proposals and Working Documents According to Article XV of the Convention and Rules 20 and 22 of the Rules of Procedure, all species proposals and other documents for consideration by the Conference of the Parties must be submitted to the Secretariat at least 150 days prior to a meeting of the Conference of the Parties. The Secretariat ensures that all documents are translated into the working languages of the Convention and distributes the documents to Parties. Amending a Proposal to Amend the Appendices Rule 22.2 of the Rules of Procedure allows the proponent of a species proposal to withdraw its proposal without a vote. A Party may withdraw a proposal that it has submitted at any time; once withdrawn, a Party may not resubmit the proposal. Rule 22.2 also allows a proponent to amend its proposal to “reduce its scope or to make it more precise.” If the proponent wishes to amend its own proposal, no vote is needed on whether it may make that amendment. The proposal is simply amended and voted on “as amended.” Rule 23.5 of the Rules of Procedure allows a non-proponent Party to propose an amendment to a proposal to “reduce its scope or to make it more precise.” If the proponent of the species proposal does not accept the proposed

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amendment, the proposed amendment must be adopted by a two-thirds majority vote. However, the practice at meetings of the Conference of the Parties on actually requiring a vote on a proposed amendment has been inconsistent. In some cases, the Chair has simply ruled that the proposed amendment constitutes an amended proposal without putting the issue to a vote. This then leaves two proposals on the table: the one originally proposed by the proponent and a second one amended by a non-proponent. If there are two proposals relating to the same species, Rule 23.6 of the Rules of Procedures requires the Parties to vote first on the proposal that has “the least restrictive effect on the trade.” For example, a proposal to include an unlisted species in Appendix II would have a less restrictive effect on trade than a proposal to include the species in Appendix I. What Does it Mean to Reduce the Scope of a Proposal? As noted, the Rules of Procedure allow Parties to propose amendments to a proposal to “make it more precise” or “reduce its scope.” Though seemingly a simple rule, interpretation has caused some confusion among CITES participants, in part because the Rules of Procedure do not define these phrases. Nonetheless, both phrases have logical meanings. The phrase “make it more precise” means to “clarify” the proposal. The phrase “to reduce its scope” is most easily described by example: if a Party originally proposes to transfer three populations of a species from Appendix I to Appendix II, a proposed amendment to apply the proposal to only one population would reduce the scope of the proposal. Similarly, a proposed amendment to transfer these populations to Appendix II subject to a quota would reduce the scope of the proposal because the original proposal sought an Appendix-II listing without other conditions. On the other hand, a proposed amendment to apply the proposal to a fourth population or to delete the species from the Appendices would increase the scope of the proposal and would not be allowed. The phrase “reduce its scope” may also be applied to proposals to transfer populations of a species from Appendix II to Appendix I. If the original proposal seeks to transfer three populations of an Appendix II species to Appendix I, then a proposed amendment to limit the proposal to one population would reduce the scope of the proposal. A proposed amendment to retain the three populations in Appendix II with quotas, including zero quotas for commercial trade, would also reduce the scope of the proposal. It is important to remember that a proposed amendment that increases the scope in any way, even if it reduces the scope in several other ways, will be ruled out of order because at least one aspect of the amendment increases the scope

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of the proposal. For example, assume that the original proposal seeks to transfer a population from Appendix I to Appendix II subject to an annotation that states that the transfer is for the exclusive purpose of allowing trade in hunting trophies and live animals. An amendment to delete the provision on hunting trophies but add a provision allowing trade in hides and hair would have the effect of increasing the scope of the proposal because the provision on hair and hides increases the scope of the proposal. Thus, the proposed amendment would be ruled out of order. It may be useful to consider the underlying policy of the rule when applying it to specific situations. The rule is designed to ensure that after the date proposals are due, the Parties are not presented with new proposals to consider. Thus, a species proposal may be amended to “reduce its scope” because the Parties have had the opportunity to consider the implications of supporting or opposing anything already within the scope of the proposal. With this in mind, it makes sense that the Parties may consider anything within the scope of the original proposal but that anything outside of that scope may not be considered. Amending a Working Document Rule 21.5 allows any Party to submit amendments to draft resolutions or other working documents, such as decisions. The Parties may discuss and vote on any such amendments. Adoption of a proposed amendment requires consensus, or in the case of a vote, a two-thirds majority of those present and voting. Voting on Proposals to Amend the Appendices or Adopt Working Documents For Committee I or Committee II to recommend adoption of a proposal, it must either agree by consensus or by a two-thirds majority of Parties present and voting. To be considered present and voting, a Party must have had its credentials accepted, must be represented in the room at the time of the vote, and must have cast a yes or no vote. Parties that do not vote or that cast a vote of abstention are not counted for purposes of calculating the majority.

Calculating a Two-thirds Majority If 177 Parties attend a meeting but only 160 Parties have had their credentials accepted and only 150 Parties are present in a meeting and cast a vote of “yes” or “no” (in other words, 10 Parties either do not vote or vote an abstention), then 100 “yes” votes are needed to approve a resolution or a species proposal (because two-thirds of 150 is 100).

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Voting can take place electronically, by a show of hands, or roll call, depending on the technology available at a given conference center. In addition, Rule 25.2 provides that Parties may vote by secret ballot when a Party makes a motion to conduct a vote by secret ballot and that motion is supported by at least ten other Parties. Voting by secret ballot has become common practice for more controversial proposals, such as those relating to African elephants or marine species. Special Voting Procedures for Amendments to the Appendices The Rules of Procedure include a number of rules that relate to how Parties take decisions on proposals to amend the Appendices. When a proposal includes multiple parts or issues, a Party may move that each part or certain parts be decided separately, though this has rarely occurred. If the motion is carried, Parties would then vote on the approved parts as a whole—in other words, as a single amended proposal. If the Parties reject each part of the proposal, the whole proposal is rejected. If two or more proposals relate to the same taxon and are the same in substance, the Parties shall vote only on one proposal and the others are considered approved or rejected, as appropriate. If, on the other hand, two or more proposals relate to the same taxon but differ in substance, the Parties shall vote on the proposals in the order of least trade restrictive to most trade restrictive. If the proposals directly contradict each other, acceptance of one would mean that the other is rejected. For example, if one proposal would amend the Appendices to remove a species from Appendix II and another proposal would amend the Appendices to move that species from Appendix II to Appendix I, the Parties would first take a decision on the proposal to remove the species from Appendix II. Because the two proposals directly conflict, approval of the proposal to remove the species from Appendix II has the effect of rejecting the proposal to transfer the same species to Appendix I. Special Voting Procedures for Working Documents When two or more working documents relate to the same issue, Rule 21.3 of the Rules of Procedure states that Parties should decide on them in the order in which they were submitted, unless the Parties determine some other order. Opening Debate in Plenary on Proposals Originating in Committees I and II If a proposal fails to secure consensus or a two-thirds majority in either Committee I or II, the recommendation of the Committee to the Conference of the Parties meeting in plenary is to reject the proposal. Similarly, if a proposal

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achieves consensus or a two-thirds majority, then the recommendation of the Committee is to adopt the proposal. However, the Conference of the Parties meeting in plenary is not required to accept a Committee’s recommendation. Any Party may make a motion to reconsider a Committee’s recommendation. The Parties and other CITES participants typically refer to this as “reopening” debate; however, the technical term is to “open” debate in plenary. Rule 19.1 of the Rules of Procedure allows a Party to open debate in plenary regarding items discussed in Committee I or Committee II when one-third of the Parties support such a motion. When the Chair of plenary introduces an agenda item, any Party may move to open debate on it. Another party must second the motion. If the motion is seconded, then the Chair grants permission to speak on the motion to the Party presenting the motion and to the Party seconding the motion. The Chair then allows two Parties to speak against the motion. The Parties speaking for and against the motion must speak only to the reasons why the proposal should be or should not be opened for debate in plenary. They are not permitted to speak to the substance of the proposal. After these Parties have spoken for and against opening debate, the Chair puts the issue of opening debate to a vote. If one-third of the Parties present and voting support the motion to open debate, then the debate is opened, subject to any limitations imposed by the Chair. At the end of the debate, the Chair puts the proposal to a vote. If a two-thirds majority of the Parties present and voting support the proposal, then it is adopted. Once the Conference of the Parties adopts or rejects a proposal in plenary that originated in Committee I or II, it cannot reconsider the matter. Thus, any Party wishing to open debate on a proposal in plenary must do so before the Conference of the Parties either approves or rejects the recommendation of Committee I or II. Reopening Debate in Plenary on Proposals Originating in Plenary When agenda items are not discussed in Committee I or Committee II but are discussed and decided in the first instance by the Conference of the Parties in plenary, such items may only be reopened for debate when two-thirds of the Parties present and voting have voted in favor of reopening the debate. The process for reopening debate is otherwise the same as for opening debate. A Party must make a motion to reopen debate with another Party seconding the motion. These two Parties then may speak in favor of reopening debate, and two other Parties are allowed to speak against it.

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DEFINING THE SCOPE OF THE CONVENTION The scope of the Convention is defined in three essential ways:

(1) The species that may be included in the Appendices; (2) The types of specimens of species that are included in the Appendices for

which CITES permits and certificates are required; and (3) The types of trade covered by the Convention.

Which Species May be Included in the Appendices? Article I of the Convention defines “species” as “any species, subspecies, or geographically separate population thereof.” The definition of “species” is notably inclusive; the use of “any” clearly provides that all types of plants and animals are eligible for listing in the CITES Appendices, as long as they meet the listing criteria. The definition does not make a distinction between marine and terrestrial species or commercially valuable and non-commercially valuable species. No other definition or provision of the treaty narrows the definition of “species.”

“Species” includes “geographically separate populations,” which Resolution Conf. 9.24 (Rev. CoP15), Annex 5 defines as “parts of a species or a subspecies within particular geographical boundaries.” For example, the Parties have listed some geographically separate populations of vicuña (Vicugna vicugna) in Appendix I and others in Appendix II. According to Annex 5 of Resolution Conf. 9.24 (Rev. CoP15), “species” may also refer to populations, subpopulations, or stocks of fish, as understood by fisheries management.

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Appendix I Species

Article II of the Convention provides that Appendix I includes “all species threatened with extinction which are or may be affected by trade.” The Convention does not define “threatened with extinction” but the listing criteria found in Resolution Conf. 9.24 (Rev. CoP15) provide advice to the Parties on how to interpret this phrase. Notably, Appendix I includes species that “are or may be affected by trade.” Again, Resolution Conf. 9.24 (Rev. CoP15) provides advice to Parties on how to interpret this language, but the plain language of the Convention clearly intends that Parties take a precautionary approach to listing species in Appendix I. The plain language of the Convention indicates that Parties do not need to wait for a species to be threatened by trade in order for it to qualify for Appendix I.

All trade in specimens of species listed in Appendix I requires both an export and import permit, unless an exemption applies. The Convention states that trade in Appendix I specimens must be “subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.” Thus, the Convention suggests that any special rules or exemptions for Appendix I species should be narrowly construed and applied.

Appendix II Species Appendix II includes two categories of species. The first category includes those species that “although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival.” Resolution Conf. 9.24 (Rev. CoP15) provides the criteria that species must meet in order to qualify for listing in Appendix II. The second category of species that qualifies for Appendix II are those that

must be subject to regulation to help control trade in other species that qualify for an Appendix II listing. These species are referred to as “look-alike species.” When listing plant species in Appendix II, Parties must identify the readily recognizable parts and derivatives that it intends the listing to cover because the permit scheme applies to “trade in specimens of species” and Article I defines “specimen” as including only “specified” readily recognizable parts or derivatives for plants. Thus, the burden is on the Party proposing Appendix-II plant

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listings to identify which readily recognizable parts or derivatives should be included in an Appendix-II listing. Unlike trade in Appendix I specimens, trade in Appendix II specimens requires only an export permit, unless an exemption applies, but the Convention also indicates that trade should proceed “subject to strict regulation.”

Appendix III Species Appendix III includes any species that a Party “identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the cooperation of other Parties in the control of trade.” Unlike Appendix I and II species, Parties add species to Appendix III unilaterally—no vote of the Conference of the Parties is necessary. Resolution Conf. 9.25 (Rev. CoP15) provides further guidance, suggesting that a Party that lists a species in Appendix III ensure that they have in place national legislation that adequately protects the species and that efforts are made on a national level to enforce that legislation. When listing species in Appendix III, a Party must consider which readily recognizable parts and derivatives of that species to list. Because the CITES permit regime covers “trade in specimens of species” and Article I of the Convention definitions “specimen[s]” of plants and animals listed in Appendix III as including only specified readily recognizable parts or derivatives, Parties must identify those parts and derivatives of a particular species that require international conservation efforts. For example, Guatemala listed only logs, sawn wood, and veneer sheets of black rosewood (Dalbergia retusa). Resolution Conf. 9.25 (Rev. CoP15), however, provides that when only a species name appears in Appendix III, all readily recognizable parts and derivatives are included in Appendix III. Resolution Conf. 9.25 (Rev. CoP15) also requests that Parties provide notice to and consult with other range States. This is important because Article V of the Convention, which outlines the permit requirements for Appendix III specimens, imposes obligations not only on the Party that lists the species but also on other range States.

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Which Specimens of Species may be Regulated by the Convention? Once a species is included in the Appendices, Parties must issue permits and certificates for trade in “specimens” of those species.

“Specimen” Article I(b) of the Convention defines “specimen” to mean “any animal or plant, whether alive or dead” and “any readily recognizable part or derivative thereof.” As described below, the term “readily recognizable parts and derivatives” is the key to understanding the scope of the permit process.

“Readily Recognizable Parts and Derivatives”

Whether a specimen is readily recognizable is central to implementation of the Convention. Neither the Convention nor any resolution defines this key phrase. However, a “part” is generally understood to be an aspect of a specimen that is not processed (e.g., a seed, shell, root, or skin), although it could be processed in simple ways (e.g., by drying or preserving). A “derivative,” on the other hand, is a processed part of an animal or plant (e.g., medicine, perfume, or watch strap). The Parties have adopted an understanding of “readily recognizable part or derivative,” most recently, in Resolution Conf. 9.6. (Rev.). The Parties have agreed that the term shall be understood as meaning “any specimen which appears from an accompanying document, the packaging or a mark or label, or from any other circumstances, to be a part or derivative of an animal or plant of a species included in the Appendices, unless such part or derivative is specifically exempted from the provisions of the Convention.” This is a broad understanding of the term and whether a specimen is labeled seems to be the most important factor. The definition also allows for a significant amount of discretion, as customs officials may decide a specimen is a “readily recognizable part or derivative” based on “any other circumstances.” In limited circumstances, the Parties have specifically included or exempted certain specimens from qualifying as a “readily recognizable part or derivative.” For example, Resolution Conf. 9.6 (Rev.) indicates that all ranched specimens are readily recognizable and that coral sands and coral fragments are not readily recognizable. Resolution Conf. 9.6 (Rev.) takes a precautionary approach to implementing the Parties’ understanding of “readily recognizable.” Even if an exporting country considers an item not to be readily recognizable and thus exempt from the

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provisions of the Convention, an importing country that does consider that item readily recognizable should continue to require any relevant export or import permits or certificates. “Trade”

“Export,” “Re-export,” and “Import” The third component of the scope of the Convention is the definition of trade. The Convention only relates to international trade, which Article I(c) defines as “export, re-export, import and introduction from the sea.” “Export,” “re-export,” and “import” are self-explanatory, carrying their common meanings. Parties have different permitting obligations depending on whether a specimen is being exported, re-exported, or imported.

“Introduction from the Sea” The concept of “introduction from the sea”—frequently referred to as IFS—is unique to the Convention. Article I(e) of the Convention defines this type of trade as meaning the “transportation into a State of specimens of any species which were taken in the marine environment not under the jurisdiction of any State.” In these circumstances, the “State of introduction” is required to issue a certificate of introduction from the sea. Despite its importance to implementation of the Convention, the Parties have differed over how to define the two key elements of introduction from the sea:

(1) Which areas are considered the marine environment not under the jurisdiction of any State?

(2) Which State is the “State of introduction”: the flag State of the vessel catching the CITES specimen beyond the jurisdiction of any State or the port State into which the CITES specimen is transported?

The Conference of the Parties has yet to finalize agreement on the second question. They have, however, resolved the first issue: Resolution Conf. 14.6 (Rev. CoP 15) defines “the marine environment not under the jurisdiction of any State” as “marine areas beyond the areas subject to the sovereignty or sovereign rights of a State consistent with international law, as reflected in the United Nations Convention on the Law of the Sea.” This definition is consistent with definitions found in other multilateral agreements, including the United Nations Fish Stocks Agreement.

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Significantly, the provisions for introduction from the sea do not affect the catch of CITES-listed species within a country’s territorial seas and exclusive economic zones. By definition, introduction from the sea only applies when CITES-listed specimens are caught in areas beyond national jurisdiction—i.e., the high seas. In addition, if catches within a country’s territorial seas and exclusive economic zone are landed in that country, no CITES documents are needed at all. Thus, artisanal fishing and most commercial fish catches are unaffected by the IFS or import/export provisions. In contrast, CITES export permits are required for fish caught in a country’s territorial seas or exclusive economic zone if those fish are exported to another country.

LISTING SPECIES IN APPENDIX I AND APPENDIX II As noted above, the permit regime of the Convention does not apply to a species unless it has been included in one of the Convention’s three Appendices. While a Party may unilaterally list species in Appendix III, the Conference of the Parties includes species in Appendix I or II only after a Party submits a proposal to include a species in Appendix I or II and the Conference of the Parties approves the proposal by consensus or a two-thirds majority of those present and voting. It is typical for Parties to consider approximately 60 to 80 proposals at a meeting of the Conference of the Parties, although there is no limit on the number of proposals that may be submitted. Parties, meeting in Committee I, evaluate the proposals to determine whether they meet the relevant criteria for inclusion in Appendix I or II. These criteria, which have evolved over time, are currently found in Resolution Conf. 9.24 (Rev. CoP15) and are frequently referred to simply as “the listing criteria.” Resolution Conf. 9.24 (Rev. CoP15) includes several important aspects to listing. In addition to describing the biological, trade, and management factors to consider when listing a species, it also defines key biological and management terms and outlines the format for proposals to amend the Appendices. It also includes several “precautionary measures” to ensure that species are not transferred from Appendix I to Appendix II without appropriate conservation and management measures. Criteria for Inclusion in Appendix I Article II of the Convention provides only the broadest criteria for inclusion in Appendix I—a species must be “threatened with extinction” and it must or may be affected by trade. The Convention does not further define the terms, but Resolution Conf. 9.24 (Rev. CoP15) provides particularized criteria for the

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Parties to consider when proposing and deciding on Appendix I listings. Annex 1 of Resolution Conf. 9.24 (Rev. CoP15) details when a species is “threatened with extinction.” The criteria are primarily based on biological and habitat factors, as well as population demographics, but they also relate to management and trade. For example, the criteria relate to the size of the population and whether the population is declining. Other aspects of the criteria relate to the quality of habitat and whether that habitat is fragmented. Still other aspects of the criteria consider extrinsic factors, such as climate variability and other environmental conditions. The criteria for inclusion in Appendix I differ somewhat depending on which set of criteria a Party chooses to use. A species is “threatened with extinction” if it meets at least one of the identified criteria, as shown in the following table.

Criteria For Inclusion in Appendix I A. The wild population is small, and is characterized by at least one of the following:

i) an observed, inferred or projected decline in the number of individuals or the area and quality of habitat;

ii) each subpopulation being very small; iii) a majority of individuals being concentrated geographically during one or more

life-history phases; iv) large short-term fluctuations in population size; or v) a high vulnerability to either intrinsic or extrinsic factors.

OR B. The wild population has a restricted area of distribution and is characterized by at

least one of the following: i) fragmentation or occurrence at very few locations; ii) large fluctuations in the area of distribution or the number of subpopulations; iii) a high vulnerability to either intrinsic or extrinsic factors; or iv) an observed, inferred or projected decrease in any one of the following:

- the area of distribution; - the area of habitat; - the number of subpopulations; - the number of individuals; - the quality of habitat; or - the recruitment.

OR C. A marked decline in the population size in the wild, which as been either:

i) observed as ongoing or as having occurred in the past (but with a potential to resume); or

ii) inferred or projected on the basis of any one of the following: - a decrease in area of habitat; - a decrease in quality of habitat; - levels or patterns of exploitation; - a high vulnerability to either intrinsic or extrinsic factors; or - a decreasing recruitment.

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Annex 5 also defines “affected by trade.” The definition clarifies that a species is “affected by trade” if it is known to be in trade and that a detrimental impact is or may be associated with that trade. A species “may be affected by trade” if it is suspected to be in trade or information points to a demonstrable level of international demand that may be detrimental to the species in the wild. Criteria for Inclusion in Appendix II Article II of the Convention provides that species included in Appendix II are those that “although not necessarily now threatened with extinction may become so” unless trade is regulated to avoid utilization that would have a detrimental impact on survival. It also provides that species known as “look-alike” species may be included in Appendix II. Resolution Conf. 9.24 (Rev. CoP15) provides further clarification for Parties to determine whether a species qualifies for inclusion in Appendix II. According to Annex 2a, a species qualifies for inclusion in Appendix II if one of the following two criteria is met:

Criteria for Inclusion in Appendix II A. It is known, or can be inferred or

projected, that the regulation of trade in the species is necessary to avoid it becoming eligible for inclusion in Appendix I in the near future.

OR

B. It is known, or can be inferred or projected, that regulation of trade in the species is required to ensure that the harvest of specimens from the wild is not reducing the wild population to a level at which its survival might be threatened by continued harvesting or other influences.

Look-alike Species In addition to species that meet the biological and trade criteria for an Appendix II listing, Article II of the Convention provides that Appendix II shall also include “other species which must be subject to regulation in order that trade [in other listed species] may be brought under effective control.” The species that fall under this provision are commonly referred to as “look-alike” species. Annex 2b of Resolution Conf. 9.24 (Rev. CoP15) clarifies this, indicating that species qualify for listing under this provision when “specimens of the species in the form in which they are traded resemble specimens of a species” included in Appendix I or II such that enforcement offices may be unable to distinguish between them. For example, Appendix II includes the American bobcat (Lynx rufus) because the markings on its fur are indistinguishable from other Lynx

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species. In addition, Annex 2b indicates that other “compelling reasons” may necessitate an Appendix II listing under Article II(2)(b) to ensure that trade is effectively controlled for listed species. Listing Marine Species The Convention’s definition of “species” clearly includes marine species. Moreover, neither the Convention nor Resolution Conf. 9.24 (Rev. CoP15) includes special listing criteria for marine species. Nonetheless, the “guidelines” for interpreting the listing criteria in Annex 5 of Resolution Conf. 9.24 do distinguish between marine and other species in the definition of “decline.” The interpretation of this definition and its application to the Appendix I listing criteria is clear; however, the Parties and other CITES participants differ over how this definition might apply to the Appendix-II listing criteria when the Parties are evaluating marine species. The controversy exists because the listing criteria for Appendix II do not include the word “decline” but some nonetheless assert that the definition of “decline” remains relevant. In particular, the definition of “decline” in Annex 5 includes a footnote that establishes numerical parameters for judging “decline” for marine species. Whereas a “general guideline for a marked historical extent of decline is a percentage decline to 5%–30% of the baseline,” the footnote provides that for marine species a narrower range may be more appropriate. Importantly, however, the parameters identified by the footnote in Annex 5 are merely guidelines. Moreover, the numerical indicators are just examples of the types of parameters that a Party could use to identify a population decline. The Parties have remained at a standstill regarding how to interpret “decline” with respect to proposals for including marine species in Appendix II. As a result, the Animals Committee and the Standing Committee have agreed that when submitting proposals for including marine species in Appendix II and when commenting on such proposals, Parties and observers should explain their approach to that criterion.

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Split-Listings The term “split-listings” refers to situations in which certain populations of a species are listed in one Appendix while other populations are listed in another Appendix or situations in which some populations are included in the Appendices and other populations are not listed at all. Resolution Conf. 9.24 (Rev. CoP15) discourages split-listings due to the enforcement issues that split-listings are likely to create. For example, a split-listing may make it more difficult for enforcement officers to know whether a specimen is from the Appendix II population or the Appendix I population. Nonetheless, split-listings have been successful for some species, particularly when combined with “annotations.” For example, the vicuña (Vicugna vicugna)  became endangered, throughout the Andes, due to international trade in its wool. The Parties agreed to split-list the vicuña, transferring some populations to Appendix II but allowing trade only in wool sheared from live animals. As a result of this carefully considered split-listing and accompanying management measures, many vicuña populations have rebounded. Annex 3 of Resolution Conf. 9.24 (Rev. CoP15) provides guidance to the Parties when they choose to split-list a species. For example, it provides that split-listings should generally apply to regional or national populations as opposed to subspecies. The reasons for this rule are enforcement-related: it would be far too easy for an unscrupulous trader to claim that his specimen derives from an unprotected population within a State rather than the protected population. Enforcement is simplified if all populations within a country are treated the same. As a result, the Conference of the Parties has typically split-listed species based on national or regional populations and then used annotations to define the specific types of trade and/or specimens subject to the split-listing. For

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example, the South African and Swaziland populations of white rhinoceros (Ceratotherium simum simum)  are included in Appendix II for the sole purpose of allowing trade in sport hunted trophies and live animals. All remaining populations remain in Appendix I. Annotations Annotations refer to notations included in the Appendices that clarify the scope of a particular listing. Annotations can take a variety of forms, including the following:

• An annotation might indicate that a species is listed in Appendix I, except for a particular population, which is listed in Appendix II. For example, the listing for minke whale (Balaenoptera acutorostrata) notes that all populations are included in Appendix I “[e]xcept the population of West Greenland, which is included in Appendix II.”

• An annotation might indicate special trade rules for specific specimens of species subject to an annotation. For example, the annotation for certain populations of African elephant (Loxodonta africana) notes that trade is permitted only in live animals, sport hunted trophies, and certain other specimens. In addition, a number of conditions are imposed on trade in ivory.

• An annotation might indicate that a quota applies to trade in specimens of a species. For example, the Appendix I listing of the cheetah (Acinonyx jubatus) provides for “[a]nnual export quotas for live specimens and hunting trophies are granted as follows: Botswana: 5; Namibia: 150; Zimbabwe: 50. The trade in such specimens is subject to the provisions of Article III of the Convention.”

Resolution Conf. 11.21 (Rev. CoP15) identifies two types of annotations—reference and substantive. Reference annotations are used to provide basic information about the scope of a listing, such as whether geographically separate populations, species, or subspecies are listed in a different Appendix; whether the species is possibly extinct; or whether an issue exists as to nomenclature. The Appendix I listing of the Tasmanian wolf (Thylacinus cynocephalus) notes that it is “possibly extinct.”

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Substantive annotations, on the other hand, usually provide information as to whether the specific trade rules apply to the listed species, subspecies, or population or to specific specimens of that species, subspecies, or population. These trade rules could be export quotas or other specific notations, such as the annotation for the cheetah (Acinonyx jubatus). Because substantive annotations alter the scope of a species’ listing, the inclusion, deletion, or amendment of a substantive annotation must follow the provisions of Article XV and the appropriate listing guidelines found in Resolution Conf. 9.24 (Rev. CoP15). In particular, the Resolution indicates that when a proposal for an annotation that identifies a geographically separate population is presented to the Conference of the Parties, it should follow the guidelines for split-listings in Resolution Conf. 9.24 (Rev. CoP 15), Annex 3. Thus, for example, the listing of certain populations of African elephant (Loxodonta africana) in Appendix II is a split-listing clarified further by an annotation that states exactly which specimens are subject to Appendix II trade rules and which remain subject to Appendix I trade rules. Because of the potential difficulties that accompany enforcement of annotations, particularly those that specify certain types of specimens, Resolution Conf. 11.21 (Rev. CoP15) outlines a number of limitations on the use of annotations. In fact, the Resolution recommends that annotations that identify specimens should be used sparingly and annotations relating to live animals and hunting trophies should be avoided. Further, if an annotation accompanies a proposed downlisting from Appendix I to Appendix II, the Resolution reminds Parties that the precautionary approach outlined in Annex 4 of Resolution Conf. 9.24 (Rev. CoP 15) applies. To ensure that annotations do not lead to enforcement or other problems, Resolution Conf. 11.21 (Rev. CoP15) directs the Secretariat to report to the Standing Committee any significant increases in illegal trade in specimens for at least four years after the adoption of an annotation relating to a downlisting from Appendix I to Appendix II. With this information, the Standing Committee may take any necessary action, including recommending suspension of commercial trade in the relevant species or requesting that the Depositary Government (Switzerland) submit a proposal to transfer the specific specimens, species, subspecies, or geographically separate population back to Appendix I. Appropriate and Acceptable Destinations Some annotations allow trade in live animals to “appropriate and acceptable destinations.” Currently, the term is used in the Appendix II listings of the South Africa and Swaziland populations of white rhinos (Ceratotherium simum simum),

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and the South Africa, Namibia, Botswana, and Tanzania populations of African elephants (Loxodonta africana). The Appendix II listing of the largetooth sawfish (Pristis microdon) allows international trade in live animals exclusively to “appropriate and acceptable aquaria for primarily conservation purposes.” Resolution Conf. 11.20 provides that an “appropriate and acceptable destination” is one that the Scientific Authority of the importing State finds is “suitably equipped to house and care for” that live animal. Thus, instead of providing a unique definition, Resolution Conf. 11.20 incorporates one of the Appendix I import permit findings to trade in Appendix II in these cases. However, because import permits are not required in such instances, the exporting and importing countries must bilaterally communicate to ensure that the finding has been made by the exporting country. In some cases, particularly with respect to exports of African elephants, questions have arisen as to the appropriateness and acceptability of the institutions agreeing to house the animals. Although a phrase used in the Convention, the Parties have yet to define what is meant by “suitably equipped to house and care for it.” The Precautionary Approach to Listing Decisions Both the Convention and the listing criteria of Resolution Conf. 9.24 (Rev. CoP15) indicate that listing species in the Appendices should reflect a precautionary approach. The plain language of the Convention suggests, for example, that a species need not actually be affected by trade to qualify for an Appendix I listing, only that the possibility exists that it may be affected by trade. In addition, Resolution 9.24 (Rev. CoP15) provides that

when considering proposals to amend Appendix I or II, the Parties shall, by virtue of the precautionary approach and in case of uncertainty either as regards the status of a species or the impact of trade on the conservation of a species, act in the best interest of the conservation of the species concerned and adopt measures that are proportionate to the anticipated risks to the species.

Annex 4 of Resolution Conf. 9.24 (Rev. CoP15) on “Precautionary Measures” establishes processes for ensuring that decisions for transferring a species from Appendix I to Appendix II (a “downlisting”) and for delisting a species from the Appendices are precautionary. Annex 4 specifies that a downlisting is only appropriate when the species no longer meets the criteria for an Appendix I listing and when one of the following precautionary measures is met:

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• the species is not in demand in international trade and its transfer to

Appendix II will not stimulate trade or enforcement problems;

• the species is in demand but range States are implementing the Convention and appropriate enforcement controls are in place;

• the downlisting includes an export quota or some other management measure that is accompanied by effective enforcement controls; or

• the downlisting includes a ranching proposal consistent with relevant resolutions.

In addition, Annex 4 specifies that a Party that has taken a reservation to an Appendix I listing may not propose a downlisting of that species unless it agrees to remove its reservation within 90 days of the new listing. Annex 4 also details a number of criteria applicable to delisting proposals. The criteria are strictest for Appendix I species—no species may be removed from Appendix I unless it is first transferred to Appendix II so that the Parties can monitor trade impacts on that species for at least two meetings of the Conference of the Parties. In these cases, the transfer to Appendix II must also meet the criteria for downlistings as outlined above. According to Annex 4, a species may not be deleted from Appendix II under two circumstances: (1) if that species would likely qualify for inclusion in the Appendices in the near future if deleted, or (2) if within the time period since two prior meetings of the Conference of the Parties the species has been subject to a recommendation under the Review of Significant Trade. Reservations Article XXIII of the Convention provides that Parties may take reservations to the inclusion of a species in Appendix I, II, or III, as well as to listings of parts or derivatives of species listed in Appendix III. When a Party takes a reservation, other Parties are to treat that Party as a non-Party for purposes of trade in specimens of the relevant species. Article XV of the Convention specifies that a Party has 90 days after the meeting at which a listing is adopted to notify the Depositary Government (Switzerland) in writing of any reservation to the listing.

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Reservations can create conservation problems, particularly when both an exporting Party and a major importing Party take reservations to the same species. In these cases, potentially significant quantities of specimens of listed species may be traded without CITES permits. Many believed that Japan’s reservation to the Appendix I listing for the Hawksbill sea turtle (Eretmochelys imbricata) (since withdrawn) and subsequent imports of specimens of the species put the Hawksbill sea turtle in conservation danger. In many cases, however, Parties take reservations and do not avail themselves of them. For example, Norway and Japan have reservations to many of the Appendix I whale listings, but little trade in whale parts has occurred between the two Parties. Resolution Conf. 4.25 (Rev. CoP14) outlines a precautionary approach for implementing reservations. Even though a Party with a reservation to an Appendix I listing is considered a non-Party to the Convention for that species, Resolution Conf. 4.25 (Rev. CoP14) recommends that the reserving Party apply the rules for trade, documentation, and control for Appendix II specimens. In addition, the Resolution asks that, despite any reservations, Parties continue to monitor and report trade in all CITES-listed species. Finally, any transfer of a species in the Appendices invalidates any relevant reservation, meaning that the Party must follow the rules in Article XV to re-enter a reservation to the up- or down-listing of a species, including any split-listings. Other resolutions also embrace a precautionary approach to reservations. Resolution Conf. 11.21 (Rev. CoP15) bars a Party from proposing the transfer of a species from Appendix I to Appendix II subject to an annotation when that Party maintains a reservation for the species unless it agrees to remove its reservation within 90 days of the new listing. Similarly, Resolution Conf. 9.24 (Rev. CoP15), Annex 4, prevents a Party from proposing the transfer of a species from Appendix I to Appendix II unless it agrees to remove its reservation within 90 days of the new listing.

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THE CONVENTION’S PERMIT REQUIREMENTS The Convention’s permit requirements, found in Articles III, IV, and V, are at the heart of the Convention’s ability to protect and conserve species threatened with extinction due to trade and to prevent species from becoming threatened with extinction. If trade is consistent with the Convention’s permit requirements, particularly the requirement to determine whether trade is detrimental to the survival of the species (the “non-detriment finding” or NDF), then the Parties can ensure that trade is sustainable. Permit Rules for the Import and Export of Appendix I and II Specimens The listing of a species in a particular Appendix determines the permit rules that apply to trade in that species. Trade in specimens of Appendix I species requires issuance of both an export permit and an import permit. Trade in Appendix II specimens requires issuance of an export permit only. Trade in Appendix III specimens requires issuance of CITES documents by the exporting country. The requirement to issue an import permit is the most critical aspect of trade in specimens of Appendix I species. Of utmost importance, the import permit must be issued prior to the issuance of an export permit. As a consequence, any trader must ensure that he has permission to import the specimen before the shipment leaves the State of export.

CITES authorities in the State of import must make three findings before an import permit may be issued. First, before an import permit may be issued, the CITES Management Authority of the State of import must determine that the trade is not for primarily commercial purposes. Because much trade is for primarily commercial purposes, such as for pets or luxury goods, this permit requirement will have the effect of prohibiting most trade in specimens of Appendix I species. In addition, the Scientific Authority of the State of import must determine that the purpose of the import is not detrimental to the survival of the species for which the permit is sought and that the proposed recipient of a living specimen is suitably equipped to house and care for it. In addition to the export finding for Appendix I specimens that an import permit must have been previously granted, the CITES authorities in the State of export must make three permit findings that apply in cases of both Appendix I and Appendix II trade, as shown in the following table.

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Import Permit Findings (Appendix I Species only)

Export Permit Findings (Appendix I and I I Species)

The Scientific Authority must advise that the import will be for purposes that are not detrimental to the survival of the species involved;

The Scientific Authority must advise that the export will not be detrimental to the survival of the species involved;

The Management Authority must be satisfied that the recipient of a live specimen is suitably equipped to house and care for it; and

The Management Authority must be satisfied that the specimen was not obtained in contravention of domestic law; and

The Management Authority must be satisfied that the specimen is not to be used for primarily commercial purposes.

The Management Authority must be satisfied that living specimens will be prepared and shipped in a manner that minimizes the risk of injury, damage to health, or cruel treatment.

Permit Rules for Re-export of Appendix I and II Specimens

The conditions for a re-export permit are similar to those for an export permit. Significantly, even if a specimen of an Appendix I species has already been imported into one country, any re-export still requires the issuance of an import permit by the State of import. One important difference between export and re-export requirements is that the re-exporting country is not required to determine that the export will not be detrimental to the survival of the species under the theory that the “non-detriment finding” was made when the specimen was originally exported. The drafters of the Convention assumed perhaps that re-exports would cause no additional harm to a species. However, in some cases, re-exports certainly could be detrimental to the survival of a species. For example, re-exports of dolphins to dolphinaria could increase the desire for such facilities and encourage additional capture of wild dolphins. Otherwise, the permit requirements for re-export are similar to those of Appendix I and II exports, with the addition of a finding that the specimen was originally imported in accordance with the Convention.

Re-export Permit Findings (Appendix I species only)

Re-export Permit Findings (Appendix I I Species)

The Management Authority of the State of re-export is satisfied that the specimen was imported into that State in accordance with the provisions of the present Convention;

The Management Authority of the State of re-export is satisfied that the specimen was imported into that State in accordance with the provisions of the present Convention; and

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The Management Authority of the State of re-export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment; and

The Management Authority of the State of re-export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.

The Management Authority of the State of re-export is satisfied that an import permit has been granted for any living specimen. Permit rules for the Introduction from the Sea of Appendix I and II Specimens Regarding the definition of Introduction from the Sea, the Parties still have not determined whether the flag State or the port State is considered the “State of introduction” for purposes of issuing introduction from the sea (IFS) certificates. Nonetheless, Articles III and IV of the Convention are clear as to which permit findings are required for such trade.

IFS Certif icate Permit Findings (Appendix-I species only)

IFS Certificate Permit Findings (Appendix-I I species)

The Scientific Authority of the State of introduction advises that the introduction will not be detrimental to the survival of the species involved;

The Scientific Authority of the State of introduction advises that the introduction will not be detrimental to the survival of the species involved; and

The Management Authority of the State of introduction is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and

The Management Authority of the State of introduction is satisfied that any living specimen will be so handled as to minimize the risk of injury, damage to health or cruel treatment. The Management Authority of the State of

introduction is satisfied that the specimen is not to be used for primarily commercial purposes. Some Parties worry that making the non-detriment finding for trade in species found on the high seas is inherently more difficult than for terrestrial species. It is true that population data for many high seas species is poor, but the same is also true for many terrestrial species. As is the case for terrestrial species, a Party that does not have sufficient data to make a non-detriment finding must refuse to issue a permit for such trade. Permits and Certificate Requirements for Appendix III Specimens For exports of specimens of Appendix III species, the State of export need not make any findings related to the biological status of the species. However, a Party that has included a species in Appendix III must issue an export permit that

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declares that the specimen was caught legally and will be shipped humanely. If a specimen listed in Appendix III originates from a country that has not itself listed the species, that country must issue a “certificate of origin.” For re-exports of an Appendix III specimen, the Management Authority of the State of re-export must issue a certificate acknowledging that the specimen was “processed in that State” or “is being re-exported.” Appendix III listings may be controversial because they require Parties that have not listed a species to undertake permit responsibilities by issuing certificates of origin. However, this requirement is important for learning more about the extent and origins of trade. In some cases, an Appendix III listing may help build support for and confidence in the CITES process. For example, in 1995 Costa Rica included bigleaf mahogany (Swietenia macrophylla) in Appendix III after two failed attempts to include the species in Appendix II. In 1997, after another failed attempt to include bigleaf mahogany in Appendix II, Bolivia, Brazil, and Mexico included their populations in Appendix III, and Colombia and Peru included their populations in 2000. Finally in 2003, Guatemala and Nicaragua’s proposal to include bigleaf mahogany in Appendix II succeeded. Non-detriment Findings The requirement that Scientific Authorities ensure that trade is not detrimental to the survival of the species is known as the “non-detriment finding.” The non-detriment finding represents the scientific core of the Convention. It is this finding that ensures that species do not become over-exploited due to trade and that trade in the species is sustainable. Despite its importance, many Parties have struggled to produce adequate non-detriment findings. The Convention includes two types of non-detriment findings. The importing country of an Appendix I specimen must determine that the purposes of the import are not detrimental to the survival of the species. The exporting country must determine that the export of an Appendix-I or -II specimen is not detrimental to the survival of the species. Similarly, the State of introduction must determine that an introduction from the sea is not detrimental to the species’ survival. Neither the Convention nor the Parties have provided criteria or guidance to distinguish between the non-detriment finding for import purposes and the non-detriment finding for export. As a general rule, the importing country should focus on whether the purpose of the trade, such as trade for souvenirs, luxury goods, or pets, is likely to stimulate trade and, as such, adversely affect the survival of the species. While the import non-detriment finding clearly requires an analysis of potential market implications in the country of import, it also requires an analysis of the population status of the species in the exporting

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country because the importing country must be able to compare possible increases in trade with the total number of individuals in the wild. Limited guidance is currently available to the Parties on what and how much data an adequate non-detriment finding should consider. Resolution Conf. 10.3 recommends that non-detriment findings for exports be “based on the scientific review of available information” regarding

• population status; • distribution; • population trend; • harvest; • other biological and ecological factors, as appropriate; and • trade information relating to the species concerned.

This is very general guidance, and the Parties have recognized that more comprehensive guidance would be useful. As such, the Parties have taken a number of steps. In 2008, Mexico hosted workshops organized for international experts in specific taxons to discuss the making of non-detriment findings. I-n 2010, the Conference of the Parties directed the Animals and Plants Committees to decide how best to convey and use the outputs of these workshops. The Conference of the Parties also asked the Animals and Plants Committees to draft a resolution containing guidance for the making of non-detriment findings. One important and relatively new issue that Parties should consider when making non-detriment findings is climate change. Climate change may have either positive or negative effects on a species’ population, fertility rate, mortality, and habitat, among other things, and could greatly affect a species’ conservation status. Primarily Commercial Purposes Finding Because Appendix I species are threatened with extinction and are or may be affected by trade, Article II of the Convention provides that

[t]rade in specimens of these species must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.

To that end, Article III of the Convention prohibits the importation and introduction from the sea of specimens of Appendix I species for “primarily commercial purposes.” Despite the importance of this prohibition for achieving

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the CITES goal of preventing over-exploitation due to trade, the Convention does not define the term “primarily commercial purposes.” However, Resolution Conf. 5.10 (Rev. CoP15) provides the Parties with some guidance as to whether an import should be considered for “primarily commercial purposes.” Resolution Conf. 5.10 (Rev. CoP15) establishes both general principles and specific examples to guide the Parties.

The general principles define an activity as “commercial” if its purpose is to “obtain economic benefit (whether in cash or otherwise), and [when it] is directed toward resale, exchange, provision of a service or other form of economic benefit.” The Resolution further specifies that importing countries define “commercial purposes” as “broadly as possible so that any transaction which is not wholly ‘non-commercial’ will be regarded as ‘commercial.’” Any use whose non-commercial aspects “do not clearly predominate shall be considered to be primarily commercial in nature” and thus importation of the Appendix I species would be prohibited. The burden of proof lies with the entity seeking to import the specimen(s) to show that the import is not for primarily commercial purposes.

Resolution Conf. 5.10 (Rev. CoP15) specifically states that it is the intended use of the Appendix I specimen in the country of import and not the nature of the transaction between the owner of the specimen in the country of export and the recipient in the country of import that matters in making a “not for primarily commercial purposes” determination. This interpretation is consistent with Article III(3)(c) of the Convention, which specifically states that “the specimen is not to be used for primarily commercial purposes” (emphasis added). In fact, efforts by Parties in the past to redefine “primarily commercial purposes” as relating to the conservation purposes in the country of export have failed due to the plain meaning of Article III(3)(c).

The Annex to Resolution Conf. 5.10 (Rev. CoP15) also recommends that Parties adhere to a general rule that the import of Appendix I specimens removed from the wild should not be allowed unless the importer has demonstrated that

(1) it has been unable to obtain suitable captive bred specimens of the same species;

(2) another species not listed in Appendix I could not be utilized for the proposed purpose, and

(3) the proposed purpose could not be achieved through alternative means.

The application of these guidelines to specific factual situations requires a fact-based determination. Consequently, the Annex to Resolution Conf. 5.10 (Rev.

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CoP15) provides a non-exhaustive set of examples to help clarify when an import is “not for primarily commercial purposes.”

Purely Private Use . This example acknowledges that, when a person

travels outside her State of usual residence, purchases an Appendix I specimen for purely private use (e.g. earrings or a bracelet made from elephant ivory from Tanzania), and then returns to her State of usual residence, such trade should be considered as “not for primarily commercial purposes.”

Scientif ic Purposes . Imports for scientific purposes may be considered

“not for primarily commercial purposes.” Resolution Conf. 5.10 (Rev. CoP15) establishes a three-part test for determining whether such imports are not for primarily commercial purposes. The import of an Appendix I specimen may be permissible when “the scientific purpose for such import is clearly predominant, the importer is a scientist or a scientific institution registered or otherwise acknowledged by the Management Authority of the country of import, and the resale or commercial exchange of the specimens, or their exhibit for economic benefit . . . is not the primary intended use.”

Education or Training . Imports of Appendix I specimens may be

considered “not for primarily commercial purposes” when a governmental agency or a non-profit institution “acknowledged” by the Management Authority of the country of import imports the specimen for purposes of conservation, education or training. For example, an Appendix I specimen imported to train customs officials in effective CITES controls would not constitute trade for primarily commercial purposes. Resolution Conf. 9.10 (Rev. CoP15) suggests that trade in confiscated specimens for this purpose warrants scrutiny and that the Parties transfer confiscated dead specimens of Appendix I species “only for bona fide scientific, educational, enforcement, or identification purposes.”

Biomedical Industry . Imports in connection with the biomedical

industry may have both public health and profit-making purposes. Consequently, “close scrutiny” of trade for the biomedical industry is necessary, and it is prudent to presume that imports are commercial and that the commercial aspects of such trade will predominate. However, when the importer “makes a clear showing to the Management Authority . . . that the sale of products is only incidental to public health research,” then the import may be considered “not for primarily commercial purposes.” Only in this rare case would the importation for biomedical research fall under the “scientific purposes” example.

Captive Breeding Programs . This example acknowledges that imports

of Appendix I specimens for captive breeding purposes “are a special case.” As a result, the example provides that such import “must be aimed as a priority at the long-term protection of the affected species, as required by Resolution Conf.

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10.16 (Rev.).” The example further notes that some captive breeding programs sell surplus specimens to underwrite the cost of the program and that imports for such programs could be allowed so long as any profit “would not inure to the personal economic benefit of a private individual or shareholder.” Instead, the profit gained would be used “to support the continuation of the captive-breeding programme to the benefit of the Appendix-I species.” Thus, this example illustrates that there should not be an assumption that the import for such programs is inappropriate. Lastly, the example states the general rule that import for captive breeding programs “must be part of general programmes aimed at the recovery of species,” that the programs should be undertaken with the help of the “Parties in whose territory the species originate,” and that any profit generated should be used to continue the program.

Imports via Professional Dealers . The final example in the Annex concerns the importation of specimens through professional dealers. Generally, import of Appendix I specimens through a professional dealer is prohibited because the primary purpose is commercial: the dealer intends to sell the specimens for profit. When the dealer imports the specimens for the purpose of subsequent sale, sales to dealers are considered primarily commercial. However, an import through a professional dealer by a “qualified scientific, educational, zoological or other non-profit organization may be considered acceptable if the ultimate intended use would be for” scientific, educational, or training purposes or for a captive breeding program. Transport Rules for the Export of Living Specimens The Convention requires that the Management Authority in the State of export to be satisfied that all living specimens of Appendix I, II, and III specimens are prepared and shipped in a way that minimizes the risk of injury, damage to health, and cruel treatment. The requirement is an important one; stories abound of animals dying under inhumane transport conditions because they were not given sufficient food, water, or ventilation.

Resolution Conf. 10.21 (Rev. CoP14) suggests to Parties that air transport is preferable for live animal and plant shipments. It also recommends that when transporting live animals or plants by air that Parties follow the International Air Transport Association’s (IATA) Live Animal Regulations or Perishable Cargo Regulations in the case of

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plants. In addition, the Parties have adopted Guidelines for Transport and Preparation for Shipment of Live Wild Animals and Plants, which outlines parameters for the handling and care of wild specimens during different stages of transport. At CoP15, the Parties adopted two decisions, Decisions 15.59 and 15.60, that among other things, call on the Animals and Plants Committees to replace the Guidelines for Transport and Preparation for Shipment of Live Wild Animals and Plants, with new guidelines specific to non-air transport of live plants and animals to better complement IATA’s Live Animal Regulations and Perishable Cargo Regulations. “Suitably Equipped to House and Care for” Article III of the Convention requires the Scientific Authority in the State of import or State of introduction from the sea to determine that “the proposed recipient of a living specimen [of an Appendix I species] is suitably equipped to house and care for it.” This is one of a few provisions that is specifically drafted to offer additional protection to live animals in trade. However, despite the importance of this provision, neither the Convention nor the Parties have defined what it means for a facility to be “suitably equipped to house and care for” a live plant or animal. Without a specific definition adopted by the Parties, the country of import must make this finding unilaterally based on national legislation or on a case-by-case basis. Also, the term “appropriate and acceptable destinations” is defined as those destinations that are “suitably equipped to house and care for” a live animal. Thus, the phrase is now also applicable to trade in living specimens of

Appendix II species for which the Parties have adopted an “appropriate and acceptable destination” annotation. Validating the Authenticity of Permits Enforcement and compliance are key to CITES’ effectiveness, and the Parties have crafted a number of rules that emphasize consistency among CITES permits as a means of being able to quickly assess the validity and authenticity of a CITES permit. Article VI of the Convention provides the basic information that should be included on a CITES permit, and Resolution Conf. 12.3 (Rev. CoP15)

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further defines the type of information that should be included in CITES permits. It also includes a standard form for CITES permits. Compliance with these standards provides the Parties an efficient means of enforcing the terms of the Convention’s permit scheme. Resolution Conf. 11.3 (Rev. CoP15) recommends that Parties establish a system for document control to ensure the validity and authenticity of CITES permits and to check with the Secretariat to confirm validity. Resolution Conf. 12.3 (Rev. CoP15) goes a step further, indicating that Parties should refuse to accept any permits that are not valid and that they should exchange any permits that are suspected of containing irregularities. Additionally, Parties should inform countries of export or re-export of any suspected irregularities or invalid permits. Resolution 12.3 (Rev. CoP15) also emphasizes the importance of the Secretariat as a clearinghouse for information from national Management Authorities by recommending that a Party with serious doubts about the validity of a permit check with the Secretariat. Adequacy of Permit Findings One question that consistently arises in CITES discussions is whether permit findings can be challenged as inadequate. For example, in 2002 the United States authorized the import of eleven live African elephants from Swaziland to zoos for public display and captive breeding. The United States determined that the non-commercial captive breeding purposes outweighed the commercial public display purposes and that the purposes were not detrimental to the species. However, a number of non-government organizations alleged that the whole transaction was commercial and detrimental to the survival of the species. Determining when permit findings are adequate is often difficult. Consider non-detriment findings, for example. Although Resolution Conf. 10.3 provides guidance on the type of information that should be assessed for making NDFs, it fails to provide guidance concerning the adequacy of the data supporting NDFs. For example, Resolution Conf. 10.3 does not require Parties to develop new information⎯it says the review should be based on “available information.” How much information is needed to make an NDF? What if the available information has not been peer reviewed? Must a Party evaluate the effect of an export on the species throughout the species’ range, or only within the borders of the exporting Party? These are important questions that the Parties currently address through their domestic legislation or on a case-by-case basis. If a Party or an observer is dissatisfied with the findings made for a single CITES transaction, the only available remedy is likely to be to challenge the permit findings at the national level.

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However, if a Party or an observer is dissatisfied with a more systemic failure of a Party to make adequate permit findings, a number of options are available. For example, the Parties have established a process called the Review of Significant Trade to review the failure of Parties to make adequate NDFs for Appendix II species. Additionally, Article XIII of the Convention establishes a process for the Secretariat to review information that any species included in Appendix I or II is being affected adversely by trade or the Convention is not being effectively implemented. In such cases, the Secretariat must communicate with the Party concerned and work with the Party to develop remedial measures. Non-compliance issues may also be made subject to the Convention’s compliance procedures established under Resolution Conf. 14.3. Purpose Codes Purpose codes identify the nature of a particular trade transaction, and Parties are recommended to use them on all permits and certificates. Resolution Conf. 12.3 (Rev. CoP15) is designed to standardize the Convention’s permits and certificates and includes a list of purpose codes for use on permits and certificates.

Purpose Codes

T Commercial Z Zoo G Botanical Garden Q Circus or Travelling Exhibition S Scientific H Hunting Trophy P Personal M Medical E Educational N Reintroduction or intro into the wild B Breeding in captivity or artificial propagation L Law enforcement/judicial/forensic

The Parties use purpose codes in a variety of ways. For some Parties, the code on the permit or certificate indicates whether a particular specimen may be imported or exported. Codes also facilitate a determination of whether the purpose of an Appendix I import may be detrimental to the survival of the species or whether the import is for primarily commercial purposes. Because Parties identify the purpose codes used on issued permits in their annual reports, purpose codes provide useful information regarding the types of exports or imports that may be driving trade in a particular species or specimen of a species.

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UNEP-WCMC uses this information to populate the CITES Trade Database, which helps Parties, the Secretariat, and international and non-governmental organizations gather and assess trade data. This information allows database users to track various trends, market demands, and market changes. Trade data may also be used in the Review of Significant Trade; while addressing compliance and enforcement matters; and when identifying candidate species for uplisting, downlisting, or delisting, among other important Convention mechanisms.

Despite the importance of purpose codes for managing trade and enforcement of the Convention, most of the purpose codes are not defined beyond the simple terms introduced by Resolution Conf. 12.3 (Rev. CoP15). The only purpose code that is defined is “H – Hunting Trophy.” While some Parties are interested in defining the existing codes, some Parties want to reduce the number of codes. However, eliminating codes will diminish the usefulness of the CITES Trade Database. The database benefits from a greater number of purpose codes, which helps identify the exact use that may undermine or benefit the conservation of a species. Reducing the number of purpose codes by introducing a catchall code for most commercial uses, for example, will lower the value of trade data. Lastly, the Parties do not currently require that purpose codes for imports and exports match. Thus, a Party may export a specimen as Z for zoological purposes but the importing country may code the same transaction as T for commercial purposes. Failure to match purpose codes makes interpretation of data more difficult and reduces the value of trade information. At least in the case of Appendix I trade, the export permit code can easily match the import code, because the import permit must be issued first. Source Codes Parties are required to identify the source of the specimen to be traded on the permit or certificate. Resolution Conf. 12.3 (CoP15) lists a number of source codes that Parties should use on permits and certificates. Resolution Conf. 12.3 (CoP15) identifies the source codes available for Parties’ use.

Source Codes W Specimens taken from the wild. R Ranched specimens: specimens of animals reared in a controlled environment,

taken as eggs or juveniles from the wild, where they would otherwise have had a very low probability of surviving to adulthood.

D Appendix-I animals bred in captivity for commercial purposes in operations included in the Secretariat’s Register, in accordance with Resolution Conf. 12.10 (Rev. CoP15), and Appendix-I plants artificially propagated for commercial

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purposes, as well as parts and derivatives thereof, exported under the provisions of Article VII, paragraph 4, of the Convention

A Plants that are artificially propagated in accordance with Resolution Conf. 11.11 (Rev. CoP15), as well as parts and derivatives thereof, exported under the provisions of Article VII, paragraph 5 (specimens of species included in Appendix I that have been propagated artificially for non-commercial purposes and specimens of species included in Appendices II and III).

C Animals bred in captivity in accordance with Resolution Conf. 10.16 (Rev.), as well as parts and derivatives thereof, exported under the provisions of Article VII, paragraph 5.

F Animals born in captivity (F1 or subsequent generations) that do not fulfill the definition of ‘bred in captivity’ in Resolution Conf. 10.16 (Rev.), as well as parts and derivatives thereof.

U Source unknown (must be justified) I Confiscated or seized specimens O Pre-Convention specimens Source codes aid Parties in their determination of the legality of particular trade transactions and provide useful data for monitoring trade levels. For example, the Parties have been reviewing source code R for ranching because some Parties have been using that code erroneously. The definitions provided for each source code have significant trade implications, including indicating whether a specimen is considered to meet one of the CITES exemptions, such as source code D for specimens bred in captivity.

EXEMPTIONS Article VII of the Convention establishes a number of exemptions to the permit requirements of Articles III, IV, and V. Some of these exemptions are intended to make administration of the Convention easier. For example, few conservation benefits are achieved by requiring permits when the specimen remains under customs control. However, many exemptions pose implementation and enforcement problems. For these reasons, and as explained below, the Parties have adopted resolutions to either define key terms, limit the scope of the exemption, or otherwise clarify how the exemption should be implemented. Customs Control/Transshipment Article VII(1) provides that the permit requirements do not apply to “the transit or transshipment of specimens through or in the territory of a Party,” as long as the specimens remain under the control of the Customs authority. Due to

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concerns that the transshipment exemption could be exploited, Resolution Conf. 9.7 (Rev. CoP15) defines “transit or transshipment of specimens” as either

(1) “specimens that remain in Customs control and are in the process of shipment to a named consignee when any interruption in the movement arises only from the arrangements necessitated by this form of traffic” or

(2)“cross-border movements of sample collections of specimens that comply

with the provisions of section XV of Resolution Conf. 12.3 (Rev. CoP15) and are accompanied by an ATA carnet.”

Pre-Convention Specimens Article VII(2) of the Convention provides a qualified exemption for specimens acquired before the Convention applied to that specimen. As long as a Management Authority issues a “pre-Convention Certificate” in accordance with Resolution Conf. 13.6, a specimen identified by that certificate is exempt from the permit regime. Two key questions arise when implementing this exemption:

(1) How is the date of acquisition determined?

(2) How is the date on which the Convention applied to a particular specimen determined?

Resolution Conf. 13.6 answers these questions. Resolution Conf. 13.6 states that the date of acquisition is the date on which the specimen was

• removed from the wild; or • born in captivity or artificially propagated in a controlled environment;

or • if such date is unknown or cannot be proved, any subsequent and

provable date on which it was first possessed by a person. As this language makes clear, the person seeking the pre-Convention exemption has the burden to prove that she acquired the specimen on a specific date. If she cannot prove that the specimen was acquired before the date on which the Convention applied to the specimen, then the specimen is not eligible for the pre-Convention exemption.

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Resolution Conf. 13.6 does not address what must be shown to “prove” that a specimen was possessed by a person on a particular date, removed from the wild, or born in captivity. Instead, each Party determines for itself when an

individual has sufficiently proved the date of acquisition. Resolution 13.6 asks each Party to include on any pre-Convention certificate the date of acquisition so that Management Authorities in importing countries are able to record the date of acquisition for this specimen. The date on which the Convention first applies to a specimen is the date on which the relevant species was first included in the Appendices. Any subsequent transfer of the species to another Appendix does not alter this rule. For example, a specimen of a species that was included in Appendix II in 2007 and transferred to Appendix I in 2010

and was acquired in 2008 would not qualify for the exemption, because the specimen was first included in the Appendices in 2007. On the other hand, a specimen acquired in 2005 would qualify for the exemption. Personal and Household Effects Article VII(3) of the Convention exempts from the permit regime specimens that are “personal or household effects.” Tourist souvenirs are perhaps the most common type of personal effects. CITES specimens that are part of a household move to another country may qualify as “household effects.” However, the exemption does not apply in certain circumstances. Appendix I Specimens For Appendix I specimens, the exemption does not apply when a person is importing a specimen acquired abroad into his or her State of usual residence. As a consequence, the Appendix I tourist souvenirs that a person acquires while traveling in a foreign country will not qualify for the exemption because the person has acquired the specimens outside his country of usual residence and is importing them back into his country of usual residence. When the personal and household effects exemption does not apply, a person will need import and export permits in order to import them into his country of usual residence. When a person moves her residence from one State to another, the Appendix I specimens she possesses would qualify for the exemption; import and export permits would not be needed. However, some Parties do not recognize this

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exemption and others may require some sort of personal and household effects certificate. Authorities should be aware of these requirements.

Appendix II Specimens The exemption for Appendix II specimens is broader and more complicated to interpret. For an Appendix II specimen, the exemption does not apply if al l of the following criteria are met:

(1) the specimen was acquired by the owner outside his State of usual residence;

(2) the specimen was acquired in a State where removal from the wild occurred;

(3) the specimen is being imported into the owner’s State of usual residence; and

(4) the State where removal from the wild occurred requires the prior grant of export permits before any export of such specimens.

Thus, if the specimen in question meets three of the criteria but not all four, then the exemption applies. For example, if an Appendix II specimen is acquired abroad in the country where it was removed from the wild and a person wants to import it into his or her home State but the country of export does not require the prior grant of an export permit, then the specimen is eligible for the exemption. Similarly, if the Appendix II specimen is acquired abroad in Country X, but the specimen was removed from the wild in Country Z, then the exemption applies. In most cases, application of the exemption turns on whether the exporting country requires export permits for the specimen in question. While the Convention sets out a broad exemption for Appendix II specimens, it recognizes that exporting countries may want to limit the application of the exemption. However, Resolution Conf. 13.7 (Rev. CoP14) assumes that a Party does not require export permits for personal or household effects—and that the exemption will normally apply—unless the Party notifies the Secretariat that it does not. Resolution Conf. 13.7 (Rev. CoP14) adds important additional criteria to the interpretation of the personal and household effects exemption. First, it defines a “personal or household effect” as a specimen that is

(1) personally owned or possessed for non-commercial purposes, and (2) legally acquired, and (3) at the time of import, export, or re-export either worn, carried, or

included in personal baggage or part of a household move.

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Second, Resolution Conf. 13.7 (Rev. CoP14) limits the application of the exemption with regard to certain specimens. For example, the Parties have agreed that when quantities of certain specimens exceed specific limits, the specimens no longer qualify for the personal or household effects exemption. These specimens are listed in Resolution Conf. 13.7 and include

• caviar (up to a maximum of 125 grams per person);

• rainsticks of Cactaceae spp. (up to three specimens per person); • specimens of crocodilian species (up to four specimens per person); • queen conch (Strombus gigas) shells (up to three specimens per person); • seahorses (Hippocampus spp.) (up to four specimens per person); and • giant clam (Tridacnidae spp.) shells (up to three specimens per person).

The Annex to Resolution Conf. 13.7 (Rev. CoP14) provides the Parties with guidelines for proposing that certain specimens be subject to a quantitative restriction. Importantly, any proposal to establish quantitative limitations must be approved by a two-thirds majority of the Parties present and voting, because an addition or change to a quantitative limit constitutes an amendment to a resolution. Captive Bred and Artificially Propagated Specimens Article VII establishes two qualified exemptions for specimens of animals bred in captivity or specimens of plants artificially propagated.

Article VII(4) states that “specimens of an animal species included in Appendix I bred in captivity for commercial purposes, or of a plant species included in Appendix I artificially propagated for commercial purposes, shall be deemed to be specimens of species included in Appendix II.” This means that a trader may trade captive bred or artificially propagated Appendix I specimens for commercial purposes as long as she obtains an Appendix II export permit. Article VII(5) provides that “[w]here a Management Authority of the State of export is satisfied that any specimen of an animal species was bred in captivity or any specimen of a plant species was artificially propagated, or is a part of such an animal or plant or was derived therefrom, a certificate by that Management Authority to that effect shall be accepted in lieu of any of the permits or certificates required under the provisions of Article III, IV or V.” The plain language of Article VII(5) suggests that a Party may trade in captive bred

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specimens of any listed species as long as the Management Authority in the State of export issues a “certificate.”

The language of the Convention is confusing but the Parties have attempted to best give effect to the distinction between the two exemptions, especially as it pertains to Appendix I captive-bred specimens.

• Article VII(4) deals with the import for commercial purposes of

specimens of Appendix I species that have been bred in captivity (for example, sale in pet stores). These specimens must originate from facilities that are registered with the Secretariat. Captive-bred specimens from registered facilities may be traded for commercial purposes, provided that an export permit is issued consistent with Article IV.

• Article VII(5) deals only with the import of specimens of Appendix I

species bred in captivity for noncommercial purposes (for example, reintroduction to the wild). Trade in these specimens requires only a certificate of captive breeding.

Resolution Conf. 12.10 (Rev. CoP15) clarifies that the Parties agree to restrict commercial trade of captive-bred specimens to those produced by facilities registered with the Secretariat. Together, Resolution Conf. 12.10 (Rev. CoP15) and Resolution Conf. 10.16 (Rev.) outline the rules the Parties have agreed to for registering captive

breeding facilities with the Secretariat. First, Resolution Conf. 12.10 (Rev. CoP15) clarifies that the phrase “bred in captivity for commercial purposes,” which defines the specimens that qualify for treatment under Article VII(4), are those animals “bred to obtain economic benefit, whether in cash or otherwise, where the purpose is directed toward sale, exchange or provision of a service or any other form of economic use or benefit.” Second, Resolution Conf. 10.16 (Rev.) specifies that captive breeding operations that intend to register with the Secretariat and trade captive-bred specimens for commercial purposes must comply with Resolution Conf. 10.16 (Rev.)—namely,

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that specimens produced by a facility that wants to register with the Secretariat must qualify as “bred in captivity” as defined by Resolution Conf. 10.16 (Rev.). Third, Resolution Conf. 12.10 (Rev. CoP15) requires that specimens traded pursuant to Article VII(4) be marked in a manner that clearly identifies all breeding stock and any specimens in trade and that facilities ensure that they are using up-to-date marking and identification methods. Finally, Resolution Conf. 12.10 (Rev. CoP15) provides that any Party may propose that a facility be deleted from the registry if there are concerns that the facility is not in compliance with all relevant requirements. Complaints by Parties may be lodged with the Standing Committee after consultation with the Secretariat and the Party home to the facility. The Standing Committee will consider these concerns at its next meeting and may recommend that a facility be deleted from the registry. Resolution Conf. 11.11 (Rev. CoP15) and Resolution Conf. 9.19 (Rev. CoP15) together outline the Parties’ interpretation of the exemptions for artificially propagated plants. Resolution Conf. 9.19 (Rev. CoP15) sets up a registry of nurseries that intend to propagate Appendix I plant specimens for commercial trade. Resolution Conf. 11.11 (Rev. CoP15) provides an understanding of “artificially propagated” as plant specimens “grown under controlled conditions and grown [] from seeds, cuttings, divisions, callus tissues or other plant tissues, spores or other propagules that either are exempt from the provisions of the Convention or have been derived from cultivated parental stock.” Resolution Conf. 11.11 (Rev. CoP15) further defines a number of other relevant terms, such as “cultivated parental stock” and “under controlled conditions.” Travelling Exhibitions Article VII(7) of the Convention provides that Parties may exempt specimens that are part of a travelling exhibitions, including travelling zoos and circuses, from the Convention’s permit requirements if the following conditions are met:

(1) the specimens are registered with the appropriate Management Authority,

(2) the specimens are either pre-Convention specimens or captive-bred specimens, and

(3) the appropriate Management Authority is satisfied that all live specimens will be transported and cared for in a manner that minimizes the risk of injury, health concerns, or cruel treatment.

Resolution Conf. 12.3 (Rev. CoP15) recommends that Parties issue “travelling exhibition certificates” as a means of facilitating implementation of the travelling

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exhibition exemption. Resolution Conf. 12.3 (Rev. CoP15) indicates that these certificates should only be issued when the criteria specified in Article VII(7) are met, the specimens were legally acquired, and the specimens will be returned to the State in which the exhibition is based. Specimens travelling with these certificates should be coded with the purpose code “Q,” and the certificates should be based on the model certificate provided in Annex 3 of Resolution Conf. 12.3 (Rev. CoP15).

SPECIAL IMPLEMENTATION ISSUES Stricter Domestic Measures Article XIV(1)(a) of the Convention states that Parties may adopt “stricter domestic measures regarding the conditions for trade, taking possession or transport of specimens of species . . . or the complete prohibition thereof.” Article XIV(1)(b) further provides that Parties may adopt “domestic measures restricting or prohibiting trade, taking, possession or transport of species not included in Appendices I, II or III.” As a consequence of these provisions, the Parties retain their sovereign rights to adopt national legislation in all areas relating to wildlife that is stricter than the provisions of the Convention.

Treaty provisions that protect the sovereign rights of States to enact stricter domestic measures are common, because international agreements generally set minimum, not maximum, standards. In other words, multilateral agreements set floors, not ceilings, for national legislation. Many Parties, both importing and exporting, have adopted a wide range of stricter domestic measures for imports and exports. For example, the Marine Mammal Protection Act of the United States bars both the import and export of all marine mammals except under very limited circumstances. Peru, Argentina, India, and Israel have all banned the export of any native wild fauna and flora. Brazil and Kenya have banned “the export of wild animals for commercial purposes.” Other countries have imposed narrower export bans. For example, Papua New Guinea has banned export of orchids (Orchidaceae) and Egypt has banned the export of certain reptiles and mammals.

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For much of CITES’ history, the only issue that has arisen regarding the implementation of this provision is transparency. To address this concern, Resolution Conf. 4.22 recommends that Parties submit copies of their stricter domestic laws to the Secretariat. Resolution Conf. 4.22 requests the Secretariat to include copies of any submissions when it circulates relevant notifications.

At CoP14, the Conference of the Parties adopted a series of Decisions that related to stricter domestic measures—frequently referred to as “SDMs.” Decision 14.28 (Rev. CoP15) asks the Parties to review the effectiveness and necessity of their SDMs with respect to achieving CITES’ goals. Decisions 14.29 (Rev. CoP15), and 14.30 (Rev. CoP15) call for a consultant to review implementation of resolutions to assess (1) whether Parties implement them consistently and (2) the potential to develop processes that reduce the need for SDMs. A Working Group has been established to review the consultant’s report and to consider the need to revise or draft resolutions in response to the report. SC62 discussed and accepted terms of reference for the consultancy. Trade with non-Party States Article X provides that Parties may accept “comparable documentation issued by the competent authorities in that State which substantially conforms with the requirements” of CITES in lieu of the permits or certificate required by CITES. Resolution Conf. 9.5 (Rev. CoP15) provides additional criteria for permits and certificates issued by countries not party to the Convention, including technical guidelines for format and the inclusion of data. Additionally, the resolution requires that the Secretariat play a role in managing trade with non-Parties by urging Parties to consult with the Secretariat prior to allowing export of Appendix I specimens to non-Parties or import of captive-bred Appendix I specimens from non-Parties. Wildlife Trade Policy Reviews The Wildlife Trade Policy Review is a process to review the laws, policies, and economic incentives relating to the management of and trade in CITES-listed species. The idea arose from Objective 1.1 of the Strategic Vision through 2005, which called for assistance in the development of appropriate domestic legislation and policies that encouraged the adoption and implementation of social and economic incentives allied to legal instruments that (1) promote and regulate sustainable management and responsible trade of wildlife and (2) promote effective enforcement of the Convention.

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A technical workshop led to the preparation of a background paper on methodologies for national trade policy reviews at CoP13 in 2004. That background paper led to four pilot reviews, supported with external funds, which examined the national wildlife trade policies of Madagascar, Nicaragua, Uganda, and Vietnam. Persons, institutions, or governmental agencies within the country being studied prepared the reviews. Each review contains a country profile, a history of domestic trade policy, CITES involvement, and an analysis of policy impacts. The reviews did not focus on customs laws, penalties, or tariffs, although these laws and policies are briefly mentioned. Instead they focused on management policies and potential for growth in the wildlife trade sector. The countries involved in the reviews have praised the process for identifying (1) inadequacies in laws and policies, (2) overlaps of jurisdiction, (3) inconsistencies between relevant laws and policies, and (4) the need for greater institutional collaboration. The reviews also have been useful as a comprehensive list of resource management related laws in each country and as a historical account of how CITES has been implemented at the national level. Others have criticized the reviews for fostering wildlife trade as a means to generate income. The Uganda Review, for example, concluded “that wildlife trade in Uganda has potential for growth and can yield substantial economic, social and conservation gains for the country.” The Uganda Review cautioned, however, that “[t]rade driven species depletion could [have an] impact on social and economic well being of communities directly dependent on wildlife.” Perhaps most significantly, the reviews do not describe how to bridge the gap between the desire for greater benefits from trade and weaknesses in legislation and capacity. Any future reviews should pay more attention to this issue. If countries are unable to manage trade at current volumes, they will not be able to at higher volumes.

Under Resolution Conf. 15.2, the Wildlife Trade Policy Review process remains a wholly voluntary process dependent on external funds. A question for the Parties is whether, given other higher priorities, they want the Secretariat to seek external funding for these reviews. Livelihoods The relationship between CITES decisions and impacts on local livelihoods in rural communities is a longstanding issue for the Conference of the Parties. Resolution Conf. 8.3 (Rev. CoP13) recognizes that commercial trade may provide some benefits to species conservation and may also provide important benefits for

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local people, as long as it is carried out at levels that are not detrimental to the survival of the species. At CoP13, the Parties amended the resolution to also recognize that “implementation of CITES-listing decisions should take into account potential impacts on the livelihoods of the poor.” At CoP14, the Parties called on the Standing Committee to oversee the development of a “rapid-assessment toolkit” for determination of national-level impacts of CITES listing decisions and of voluntary guidelines for addressing these impacts. The Secretariat has indicated that it will soon make available online the “Toolkit for the rapid assessment at the national level of the positive and negative impacts of implementing CITES listing decisions on the livelihoods of the poor rural communities” and the “Nazca guidelines for Parties to address the negative

impacts of implementing CITES listings.” While the Parties generally agree that livelihoods are a worthwhile consideration, they have disagreed as to how it is best addressed within the CITES framework. Some Parties believe it is a central concern of CITES and that all decisions regarding the amendment of the Appendices should hinge on livelihood impacts. Other Parties believe that the livelihoods issue, while important, is a national-level concern and that any direct action regarding livelihoods must be taken at the national level. For some Parties, their view on livelihoods is motivated by interpretations of the scope of CITES; for other Parties, their views hinge primarily or

additionally on how the livelihoods program of work impacts the Secretariat’s budget and time to undertake other activities. Trade in Hunting Trophies Hunting trophies are treated as a special category of trade based on the understanding that in some cases, trade in hunting trophies may yield an overall conservation benefit to a particular species. Resolution Conf. 12.3 (Rev. CoP15) defines hunting trophies for CITES purposes, and Resolution Conf. 2.11 (Rev.) reminds Parties that trade in Appendix I hunting trophies must comply with the permit requirements outlined in Article III of the Convention.

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Resolution 2.11 Conf. (Rev.) calls on the Scientific Authority of the importing country to “accept the finding of the Scientific Authority of the exporting country that the exportation of the hunting trophy is not detrimental to the survival of the species, unless there are scientific or management data to indicate otherwise.” The Parties adopted this provision because some importing countries were rejecting the non-detriment findings of exporting countries.

Although Resolution Conf. 2.11 (Rev.) calls on the Parties to accept the non-detriment finding of the export country, it nonetheless acknowledges that the non-detriment finding that the importing country must make relates to the purposes of the import. For that reason, paragraph c) of Resolution Conf. 2.11 (Rev.) states that the Scientific Authority of the importing country has a duty to make a non-detriment finding indepedently of the non-detriment finding made by the exporting country. Export Quotas The Conference of the Parties has created several different mechanisms for establishing export quotas. The various regimes include setting export quotas for Appendix I species, transferring species from Appendix I to Appendix II with an export quota, using annotations as a means of establishing an export quota, and, finally, recognizing nationally established export quotas. Appendix I Export Quotas Trade in Appendix I specimens may be subject to quotas that have been approved by the Conference of the Parties or adopted unilaterally by a specific country. In recent years, most quotas for trade in Appendix I species have been approved by the Conference of the Parties rather than unilaterally adopted. Resolution Conf. 9.21 (Rev. CoP13) addresses trade in specimens of Appendix I species subject to a quota that has been adopted by the Conference of the Parties. Resolution Conf. 9.21 (Rev. CoP13) establishes two important principles for implementing quotas for specimens of Appendix I species. First, it states that

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a Party wishing to establish or amend a quota for an Appendix I species must submit a proposal to the Secretariat at least 150 days before a meeting of the Conference of the Parties with “supporting information including details of the scientific basis for the proposed quota.” Second, it states that when the Conference of the Parties establishes an export quota for a particular Appendix I species, “this action . . . satisfies the requirements of Article III,” provided that the quota is not exceeded and that no new data emerge to indicate that the quota has become unsustainable. Resolution Conf. 9.21 (Rev. CoP13) has been applied expressly in the context of quotas for hunting trophies of three species: Resolution Conf. 10.14 (Rev. CoP14) on leopard (Panthera pardus) hunting trophies, Resolution Conf. 10.15 (Rev. CoP14) on markhor (Capra falconeri) hunting trophies, and Resolution Conf. 13.5 (Rev. CoP14) on black rhinoceros (Diceros bicornis) hunting trophies. In addition to adopting species-specific export quota resolutions, the Parties may amend the Appendices to include an annotation establishing an export quota for a species. For example, the Conference of the Parties amended the listing of the cheetah (Acinonyx jubatus) to allow for a quota for hunting trophies. Although not explicit, it is presumed that the adoption of a quota as an annotation satisfies the requirements of Article III. Resolution 9.21 (Rev. CoP13) is useful because it clarifies that Parties may ease administrative burdens and secure specific trade levels for highly valuable species. However, it fails to address two important issues. First, the scientific basis required for proposing or amending a quota is not clear. A Party proposing an export quota to the Conference of the Parties for approval must do so “with supporting information including details of the scientific basis for the proposed quota.” However, the resolution does not say the “supporting information” must be sufficient to make a non-detriment finding; for example, the resolution does not request management and trade information, two types of information that are useful when making non-detriment findings. This leaves open the possibility that quotas may be approved that are detrimental to the survival of the species because they were not properly based on sound scientific, management, and trade data.

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Additionally, when the Parties establish export quotas either via resolution or via an amendment to the Appendices, the quotas may only be altered by adoption of a proposal to change the quota by a Party. This provides little flexibility to adjust to potentially fast-changing circumstances, and it relies, most likely, on the unilateral impetus of a range State proposing a change to the quota at a meeting of the Conference of the Parties. Appendix II Export Quotas As is the case for Appendix I species, Parties may establish quotas for Appendix-II species either unilaterally or with the approval of the Conference of the Parties, usually as an annotation in the Appendices. Most often, Appendix-II export quotas are established at the national level. The Annex to Resolution Conf. 14.7 (Rev. CoP15) provides guidelines for Parties interested in setting nationally-established export quotas. The guidelines address a number of aspects of setting export quotas. For example, the guidelines suggest that in most cases the timeframe for a nationally-established quota should be the calendar year (1 January – 31 December). Additionally, the guidelines clarify that nationally-established export quotas should be set based on a non-detriment finding made by a Scientific Authority. Among other things, the guidelines also specify that when the Secretariat learns of a quota that raises concerns, it should first try to address these concerns via direct communication with the relevant Party. However, if the concerns go unresolved, the Secretariat will publish the quota on its website with a notation indicating its concern. When another Party has concerns about a nationally-established quota, the Party should address its concern directly with the relevant Management Authority in accordance with Resolution Conf. 11.18. The Conference of the Parties may approve an Appendix-II export quota when downlisting a species. Annex 4 of Resolution 9.24 (Rev. CoP15) articulates precautionary measures that the Parties must observe when considering proposals to amend Appendix I and II. The Parties list the use of export quotas as one of the precautionary safeguards for a transfer of an Appendix I species to Appendix II. Resolution 9.24 (Rev. CoP15) lists two criteria for establishing this type of export quota: (1) to renew, amend, or deactivate a quota, the Party must submit a proposal to the Conference of the Parties, and (2) when a Party submits a quota for a limited period of time, the quota becomes zero unless the Party establishes a new one.

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Periodic Review of the Appendices Resolution Conf. 11.1 (Rev. CoP15) establishes the Animals and Plants Committees and as a component of their work, requests a Periodic Review of the Appendices. Resolution Conf. 14.8 further elaborates on the Periodic Review of the Appendices and outlines a process for choosing which species the Committees should review as well as potential outcomes of the Periodic Review. Importantly, Resolution 14.8 specifies which taxa may not be considered for review. Other species are listed in a summary table from which the Animals and Plants Committees choose which species to review. After species are chosen for review, the Secretariat notifies the Parties and solicits interest from range States for undertaking the reviews. The Standing Committee is kept apprised of the status of the Periodic Review. If a review suggests that it may be appropriate to transfer a taxon from one Appendix to another or to delete the taxon, the Animals or Plants Committee, as appropriate, in consultation with range States, prepares a proposal to amend the Appendices. If all range States are unwilling to submit the proposal, the Secretariat requests that the Depository Government (Swit

zerland) submit it with comments from the range States.

COMPLIANCE AND ENFORCEMENT ISSUES

The Convention highlights the importance of compliance and enforcement. Adequate implementation of the provisions of the Convention and enforcement of the domestic laws and measures that give CITES national effect are central to achieving the goal of ensuring that species are not over-exploited for international trade purposes. As a result, the Conference of the Parties has elaborated on the provisions of the Convention in resolutions outlining compliance and enforcement procedures. The Conference of the Parties has also adopted other resolutions that outline mechanisms for dealing with compliance

Taxa Not to be Considered for Periodic Review A. Species that were the subject of listing proposals at the previous two meetings

of the Conference of the Parties (whether or not the proposals were adopted) B. Species listed under Resolution Conf. 9.24 (Rev. CoP15) in the last 10 years C. Species subject to ongoing reviews, such as the Review of Significant Trade or

Periodic Reviews conducted in the last 10 years D. Species subject to other reviews targeted by valid Decisions and Resolutions of

the Conference of the Parties

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and enforcement in specific situations, such as potentially unsustainable trade in Appendix II specimens (the Review of Significant Trade process) and ensuring that Parties have adequate national legislation (the National Legislation Project).

Compliance and Enforcement under Article XIII Article XIII of the Convention provides broad authority to the Conference of the Parties to recommend actions it deems appropriate when a Party’s non-compliance has been brought to its attention. Article XIII is triggered when the Secretariat receives information that trade is adversely affecting an Appendix I or II species or that a Party is not implementing the provisions of the Convention effectively. In these situations, the Secretariat must communicate this information to the Management Authority of the Party concerned. The Party concerned must respond to the Secretariat of any relevant facts relating to the non-compliance and, when appropriate, propose remedial action. The Secretariat is charged with submitting information concerning these enforcement or compliance matters to the Conference of the Parties, which may then make “appropriate” recommendations for assisting the Party concerned comply with the provisions of the Convention. Compliance and Enforcement under Resolution Conf. 11.3 (Rev. CoP15) Resolution Conf. 11.3 (Rev. CoP15) establishes a process for applying Article XIII with respect to specific cases of alleged infractions or illegal activities, such as instances of illegal wildlife trafficking, as opposed to broader questions of potential non-compliance. Resolution Conf. 11.3 (Rev. CoP15) recommends that Parties respond to inquiries from the Secretariat within one month. Consistent with the goal of facilitating compliance rather than punishing non-compliance, it also recommends that the Secretariat work with the Party concerned to resolve the problem. However, if a solution cannot be readily achieved, the Secretariat is instructed to bring the matter to the attention of the Standing Committee, which may work with the Party concerned to find a solution. Compliance and Enforcement under Resolution Conf. 14.3 The Annex to Resolution Conf. 14.3 outlines guidelines for dealing with compliance matters relating to implementation of the Convention and resolutions and decisions. In contrast to Resolution Conf. 11.3 (Rev. CoP15), Resolution Conf. 14.3 relates to broader questions of non-compliance, such as compliance with the provisions of the Convention, taking into account relevant resolutions and decisions.

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The CITES compliance guidelines make clear that the Parties and the Secretariat should take significant action to facilitate compliance by a Party rather than punish non-compliance. These actions may include the provision of technical assistance, capacity-building support, or a mission to the non-compliant Party, among other actions. The compliance guidelines, however, note that in certain cases the Standing Committee may recommend trade suspensions for specimens of one or more species. Parties view the recommendation of trade suspensions as a last resort in cases of persistent or unresolved non-compliance. The guidelines clarify that the Standing Committee’s authority to issue trade suspensions relates only to a limited number of resolutions. Bear in mind, however, that the Conference of the Parties has independent and unfettered authority to take appropriate action in cases of non-compliance under Article XIII(3).

Compliance under Resolution Conf. 11.18 Resolution Conf. 11.18 recognizes that Parties may have concerns that trade in specimens of Appendix II or III species may be occurring at levels that may be detrimental to the survival of that species. In these cases, Resolution Conf. 11.18 calls on Parties to attempt to address concerns directly with the Party or

CITES Provisions subject to CITES Compliance Procedures under Resolution Conf. 14.3

• Article IX: designation of Management Authorities and Scientific Authorities • Articles III, IV, V, VI, VII, and XV: trade procedures • Article VIII, paragraph 1: enacting appropriate domestic measures to enforce

the Convention and prohibit illegal trade • Article VIII, paragraphs 7 & 8: maintaining trade records and submitting

periodic reports • Article XIII: responding to queries by the Secretariat regarding potential

compliance concerns

Trade Suspension Authority and the Standing Committee

• National reports: Resolution Conf. 11.7 (Rev. CoP14) • National laws for implementation of the Convention: Resolution Conf. 8.4 (Rev.

CoP15) • Review of significant trade in specimens of Appendix-II species: Resolution

Conf. 12.8 (Rev. CoP15) • Compliance and Enforcement: Resolution Conf. 11.3 (Rev. CoP15) • Establishment of Committees: Resolution Conf. 11.1 (Rev. CoP15)

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Parties involved as a first step. If such consultation fails to address the matter satisfactorily, Resolution Conf. 11.18 recommends that Parties involve the Secretariat, using the compliance procedures available under Article XIII of the Convention, or initiate stricter domestic measures as appropriate. Review of Significant Trade The Review of Significant Trade (RST) has emerged as the principal means of ensuring the Parties comply with the requirement that trade in Appendix II specimens occur only after a valid and adequate non-detriment finding is made. Resolution Conf. 12.8 (Rev. CoP13) outlines the RST, which is based on a balance of capacity-building and remedial action as appropriate, including the imposition of trade suspensions. The initial stages of the RST focus on consultation, capacity-building, and oversight. Species enter the RST process if trade data indicate that they are traded at levels that are of concern to the Animals or Plants Committees. The Secretariat then consults with the relevant Party to determine any potential non-compliance and to ascertain whether a species has been properly selected for review. After the initial consultation, the Secretariat proposes to categorize the species under review into one of three categories: species of urgent concern, species of possible concern, and species of least concern. The Animals or Plants Committees finalizes the categorization, and any species categorized as a species of least concern is dropped from the review process.

After categorization is finalized, the Animals or Plants Committee, in consultation with and based on the recommendations of the Secretariat, provides guidance to the relevant Parties regarding species of urgent concern and those of possible concern. The goal at this stage of the process is to help the Party collect the necessary biological information and implement any necessary trade restrictions, such as export quotas. The relevant Committee also recommends short- and long-term actions for the Party to take. The Animals or Plants Committee must establish appropriate deadlines for these

RST Categorization “Species of urgent concern”: those species “for which the available information

indicates that the provisions of Article IV, paragraph 2(a), 3 or 6(a), are not being implemented.”

“Species of possible concern”: those species “for which it is not clear whether or not these provisions are being implemented.”

“Species of least concern”: those species “for which the available information appears to indicate that these provisions are being met.”

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actions, within the timeframes set out in Resolution Conf. 12.8 (Rev. CoP13). Once a Party has complied with all recommendations to the satisfaction of the Secretariat and the Chair of the Animals or Plants Committee, the Secretariat, in consultation with the Standing Committee, removes the species from the RST. If a Party has not implemented the recommendations, however, the Standing Committee, based on the recommendations of the Secretariat, may recommend “appropriate action,” including “as a last resort” suspending trade in the species of concern from the non-compliant Party. This applies to species categorized as either “species of urgent concern” or “species of possible concern.” The RST can be an effective compliance tool, and it has had positive conservation impacts for a number of species. For example, when the African cherry (Prunus africana) was categorized as “of urgent concern,” the Plants Committee established a working group that organized a workshop that lead to better management and surveys. The queen conch (Strombus gigas) is also touted as an RST success story—in fact, a review of the queen conch led some Parties to cease commercial trade and others to better manage trade by setting export quotas and undertaking other management efforts. National Legislation Project Article VIII requires that Parties take measures to enforce the provisions of the Convention and to prohibit trade in specimens of species that contravenes the Convention. Additionally, Article IX requires that each Party designate at least one Management Authority and one Scientific Authority. Viewing these provisions as vital to achieving the Convention’s goals, the Parties established the National Legislation Project in 1992 with the goal of assisting Parties with the adoption of adequate domestic implementing legislation. Resolution Conf. 8.4 (Rev. CoP15) directs the Secretariat to identify Parties without CITES legislation to implement the Convention effectively. Resolution Conf. 8.4 (Rev. CoP15) includes the following criteria by which the Secretariat makes this assessment: designation of Management and Scientific Authorities,

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prohibition of trade in violation of the Convention, authority to penalize illegal trade, and authority to confiscate illegally traded or possessed specimens. After its review, the Secretariat categorizes a Party’s legislation relative to the degree to which it meets the requirements for the implementation of CITES. The Secretariat communicates with Parties in Category 2 and 3 to address deficiencies and brings to the attention of the Standing Committee Parties that fail to respond to the Secretariat’s queries.

Additionally, Resolution Conf. 8.4 (Rev. CoP15) designates the Standing Committee to review the list of Parties that have not adopted adequate implementing legislation and to impose, when appropriate, compliance measures, including recommendations to suspend trade.

National Legislation Project Categorizations Category 1: legislation which is believed to generally meet the requirements for implementation of CITES Category 2: legislation which is believed generally not to meet all requirements for the implementation of CITES Category 3: legislation which is believed generally not to meet the requirements for the implementation of CITES